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Commerce Clause: Powers
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The Commerce Clause was adopted, in part, to address this kind of collective action problem. Each State's consumers would always have benefited from free trade among the States, but the manufacturer in any one State would be harmed if its goods were taxed when going into other States and its competitors's goods were not taxed coming into its own. As Hamilton explained, part of the reason for the Commerce Clause was to give Congress the power to solve this dilemma:
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Until recently the Commerce Clause was viewed as the equivalent of a blank check, a grant of authority from Constitution to Congress limited only by that institutions own sense of restraint. And Congress, sensitive to the needs of the nation and the winds of political fortune, responded with an array of measures that made it seem that nothing lay beyond the reach of a commerce power writ large.
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The story of the Commerce Clause criminal law is not black and white.... There are areas, as the subtle nature of the commerce power would suggest, where the federal government is vested with the power to intervene in the criminal law. As Chief Justice Marshall acknowledged, Congress has the power to enact criminal laws covering federal commercial crimes, such as piracy or counterfeiting.[161] Marshall also believed that Congress could pass criminal laws, under the Necessary and Proper Clause, in order to carry out other enumerated powers. Thus, Congress could make it a federal crime to rob a post office under the power to establish post offices and post roads, he concluded.[162] Similarly, Congress could pass criminal laws protecting federal property under Congress's authority to maintain federal property.
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ROBERTS AND THE COMMERCE CLAUSE: Supposedly, the Democratic questioning of Roberts is going to focus mainly on his views of the Commerce Clause. That would interest me, since I'd like to know those myself, especially in light of the Supreme Court's recent retreat from its holdings in Lopez and Morrison that -- until this term -- suggested it was taking the notion of constitutional limits on the commerce power.
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