The Commerce Clause is virtually the "Congress can do any damn thing it wants to do" Clause.
It is rare, indeed, for the Supreme Court to strike down congressional legislation on the ground that Congress exceeded its Commerce Clause powers.
Lopez case:
Quote:The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, §922(q) contains no jurisdictional element which would ensure, through case by case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that §922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
Case
After the Supreme Court decided Lopez, Congress amended the GFSZA to include the magic jurisdictional nexus language ("moves in or otherwise affects interstate commerce") and PRESTO! The UNCONSTITUTIONAL GFSZA was now constitutional and all the other concerns about converting congressional Commerce Clause authority into a general police power suddenly evaporated into thin air.
The Supreme Court has upheld our elected officials' extremely broad use of the Commerce Clause as a device to justify federal police powers. If "we the people" believe Congress is misusing its Commerce Clause powers, we must resort to the political process and request that Congress voluntarily limit its reach or we can amend the Constitution to better define and limit Congress's power to regulate commerce through the use of federal criminal laws.
But, I doubt that "we the people" will do anything to limit governmental power when most people see the government as the pancea for every perceived ill. "There ought to be a law," the people exclaim about everything and anything, and our elected officials are more than happy to answer the call for more and more laws.
Quote:The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “ ‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’ ” however legitimate or dire those necessities may be. Wirtz, 392 U.S., at 196 (quoting Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 426 (1925)). See also 392 U.S., at 195—196; Wickard, 317 U.S., at 124 (“ ‘[N]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress’ ”). Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, see, e.g., Morrison, 529 U.S., at 661—662 (Breyer, J., dissenting) (noting that 38 States requested federal intervention), so too state action cannot circumscribe Congress’ plenary commerce power. See United States v. Darby, 312 U.S. 100, 114 (1941) (“That power can neither be enlarged nor diminished by the exercise or non-exercise of state power”).
http://straylight.law.cornell.edu/supct/html/03-1454.ZO.html
