State Court accepts federal overreach


Federalism takes another hit in Washington State

In America, even those who trample on the Constitution must pretend to revere it, at least in politics. And so as the national government has been gradually–or dramatically–expanded over the last century, politicians and judges have scrupulously crafted alibis to explain why, golly, it turns out gigantic top-down government really was part of our constitutional design.

One of these fibs has grown like a tumor on the Commerce Clause, the enumerated power in Article I, section 8.

“Congress shall have the Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

This was one of the original reasons for replacing the Articles of Confederation with the Constitution, to facilitate trade among the states and prevent wasteful and dangerous commercial conflicts. But, says the Supreme Court, isn’t everything, at some level, about commerce? And so the Commerce Clause has been used as the reason why the national government can regulate wages, wolves, and backyard gardens (whether growing wheat or marijuana), to name just a few.

One might think that state governments, even state courts, would resist such federal overreach. All too often that is not the case. Last week, the Washington State Supreme Court happily embraced the overextended Commerce Clause to hold that the Federal Arbitration Act overlaps with–and preempts–Washington’s Condominium Act. The Court decided that selling and warrantying condos is “interstate commerce” because, well, some of the stuff used to build those condos probably came from another state. So much for limited federal power, and so much for states standing up for state authority against federal overreach.

(P.s. I actually think the Washington law is a boon for lawyers and harmful to builders, investors, and the economy. But if Washington State’s raison d’être, at least at times, is simply to serve as a warning to other states … isn’t that what “50 laboratories of democracy” is all about?)

Cross-posted at

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3 Responses to State Court accepts federal overreach

  1. Twitted by robertsmoto on 2009/12/31 at 4:49 PM

    […] This post was Twitted by robertsmoto […]

  2. Sandy on 2010/01/01 at 2:04 AM

    Oh no! My fear is the commerce clause will continue to be "extended" to embrace universal health care…

  3. Tristan Benz on 2010/01/02 at 12:00 AM

    Name one new law passed over the last year that can't be described as a boon for lawyers? When we look deeply, many "safety" laws are 100% destructive of the little guys, a bit of a nuisance for the larger companies but an absolute BOON for the lawyers. Is it that lawyers are better lobbyists? Or contributors? Or both? (than we, the people, that is…)

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