Consider this colloquy:
Justice 1: But in some of those very cases, General Days, the statement is found that the power is not limitless.
Solicitor General: Well, that is certainly the case, Chief Justice Rehnquist.
That’s an understanding from the Constitution, but one has to look at where the limitations are that are imposed by the Constitution itself.
Justice 1: Well, what would be… if this case is… Congress can reach under the interstate commerce power, what would be an example of a case which you couldn’t reach?
Solicitor General: Well, Your Honor, I’m not prepared to speculate generally, but this Court has found that Congress, for example, in New York v. United States could not regulate… could not require New York State to carry out certain responsibilities, because it was commandeering the instrumentalities of the State.
Justice 2: Well, the objection there was that it was objecting the State governmental machinery to operate in a certain way.
The question here, it seems to me, is quite different.
The question here is the universe of transactions that the Congress may reach.
Solicitor General: Yes.
Justice 2: Can you tell me, Mr. Days, has there been anything in our recent history in the last 20 years where it appears that Congress made a considered judgment that it could not reach a particular subject?
Solicitor General I don’t know whether there’s been a conscious effort to do that, but I think as this Court has said in its Tenth Amendment jurisprudence that Congress reflects the will of the people, and it has built into it, and into its operations, a concern about the extent to which its regulations and its legislation would encroach on matters that have been traditionally left to the State.
The Solicitor General here did not do a very good job in answering questions about the limit of federal power. Once the question is asked, it really may be too late for an answer.
Oh, btw the case is United States v. Lopez. Justice 1 is Rehnquist. Justice 2 is some guy who shares a name with our 35th President.
And does this bit sound familiar?
Justice Ginsburg: What are the limits, then?
You said it could be all of violent crime could come within it.
You’re not making the distinction between concurrent jurisdiction and displacing the State authority, so what is the check?
How would you describe the check that the Court has?
Mr. Days, III: Well, I’m perhaps left to repeat myself in some respects.
This Court has never said that there are absolute limits to the exercise of the commerce power.
It’s looked at individual cases and tried to determine, exercising–
Justice Ginsburg: What would be a case that would fall outside, other than the one that you… the nuclear waste, telling the State, in effect, you serve as Federal official for this purpose?
Mr. Days, III: –I don’t have–
Justice Scalia: Don’t give away anything here.
They might want to do it next–
Mr. Days, III: –Your Honor, I–
Justice Stevens: General Days, could I ask–
Mr. Days, III: –the Court has never looked at this in the abstract.
It’s not an abstract process.
It’s been viewed by the Court as an empirical process.
Justice Kennedy: –But my point is, Mr. Days, maybe the constitutional system would be better served if we recognize that there are no judicial tools to do this.
Mr. Days, III: There are… excuse me.
Justice Kennedy: There are no judicial tools to put meaningful limits on the Commerce Clause.
Therefore, it’s essentially a political question, therefore, the obligation to protect the Federal system is that of the Congress, and therefore we have to ensure that there’s some mechanics or procedures that they mus follow to do so–
Mr. Days, III: Your Honor–
Justice Kennedy: –especially if there is an indication that this is never an explicit subject of concern.
Mr. Days, III: –Well, I’m not arguing that it’s a political question.
Indeed, one of the elements of the political question doctrine is that there are not available judicial tools for evaluating what is at issue.
I think this Court has identified in a number of cases the fact that there are limits within the Constitution that can be applied by this Court to control the extent to which Congress operates under the commerce power.
The fact that this Court has not found the need to rein in Congress is simply an indication that Congress is legislating in a way that’s consistent and rational–