Is National Security Replacing the Commerce Clause as the Basis for Sweeping Federal Power?

The falling away of federalistic principles from government is often linked to the increasingly nationalistic scope of politics. Under the auspices of the commerce clause and the “necessary and proper” clause, federal government officials have been able to rationalize their claim to final regulatory authority over an increasingly wide swathe of issues. The commerce clause gives Congress power to “regulate Commerce with foreign Nations, and among the several States”.

The necessary and proper clause is more sweeping and unilateral. It gives not only Congress, but federal government organs and departments in general, broad authority to “make all laws which shall be necessary and proper for carrying into Execution the [enumerated powers outlined in Article I], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Taken together, the commerce clause and the necessary and proper clause often act as an end-run around the Ninth and Tenth Amendments, which reserve all rights not delegated to the governments to the states and people respectively. For instance: despite the enumerated powers not mentioning anything about federal authority over drug prohibition, the government’s ability to regulate inter-state commerce is the basis for laws banning not just the sale but the inhalation of marijuana, even within a state; drugs are a product like anything else, meaning financial transactions are involved. Even local transactions might affect supply or demand in another state. So, these fall within the realm of interstate commerce. Or so the logic goes. (See the Supreme Court’s decision in Gonzales v. Raich.)

The ludicrousness of this interpretation is protected by the breadth of the necessary and proper clause. Precedent is now long established by federal courts, making this dubiously-rooted Constitutional precedent fairly indelible. State and local arguments really don’t stand a chance.

But as transformative as the very liberal interpretation of the commerce clause has been, federal officials may have found a new legal rationale that allows them to push the bounds of power even further: national security.

A recent story in The Hill reports that the Trump administration may be considering building a national 5G mobile wireless network in an effort to protect communications from intrusions by hostile foreign agents. The shades of the Trump-Russia collusion narrative loom large in the background.

This would be an unprecedented takeover of a large private sector. It would be like the sequel to the Obama administration’s seizure of the healthcare sector, nationalized, as it happens, in part under the authority of the commerce clause. What’s more alarming is, while the government proposes two plans to build a network—one relying solely on centralized authority and another involving public-private partnerships with private carriers—the administration sees only the former as truly secure.

This sends two messages: first, only the federal government can offer you, the citizen, true protection from threats, and, second, all competing rights-based claims are ancillary to national security. That the administration can even dare to propose what would amount to a seizure of private property reveals just how firm the federal government’s hold on power is.

As with the commerce clause, the federal government can use the necessary and proper clause as a kind of legal coup de gras. Among the enumerated powers listed in Article 1, Section 8 of the Constitution is the authority of Congress to secure the national defense. Since the necessary and proper clause gives not just Congress but any government official power to act in the interest of securing this vague end, this seems to give the federal government fairly good grounds to undertake a wide variety of actions in name of this end.

And it’s not as if this hasn’t been done before: Fourth Amendment protestations to surveillance laws like FISA and the PATRIOT ACT have been neatly brushed aside in the name of securing the nation against terrorist threats.

The commerce clause, though expansive, does have its limitations. What is considered a threat to national security, however, is incredibly nebulous. Take the recent questioning of social media network executives over Russian bot-produced content during the recent electoral cycle. Crusading members of Congress breathed hot and heavy down the throats of Facebook and Twitter officials who saw but did nothing to remove so-called “fake news” from their platforms. Admittedly, they’ve taken no actions yet to regulate these networks. But, under an expansive interpretation of Congress’s duty to national security, is such an action really that far afield, particularly when the current administration is proposing nationalizing mobile networks?

Such speculations are not strawmen; they are the quite rational extrapolation of current situations taken to their logical extremes. If citizens wish to live in a world where all their rights are not subject to truncation by the government in the guise of pursuing federal duties, to boldly venture forth into such rabbit holes cannot be portrayed as unhinged conspiratorial thinking. To quote a piece of wisdom attributed to the great Thomas Jefferson, “Eternal vigilance is the price of liberty.”


Also published on Medium.

All content protected by copyright. The Politics of Discretion, 2016.
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