April 22, 2011

What Do Light Bulbs Have to do with the Commerce Clause?

By Geoffrey P. Hunt

Rand Paul, freshman US Senator from Kentucky, at a Senate Energy and Natural Resources Committee hearing last month, summed up in a few choice sentences the Democratic Party progressive agenda:

You're really anti-choice on every consumer item that you've listed here, including light bulbs, refrigerators, toilets -- you name it, you can't go around your house without being told what to buy... You raise the cost of all the items with your rules, all your notions that you know what's best for me.

A few days ago, in further hearings on more appliance regulations, Sen. Paul continued his assault on the "boot heel of the collective," drawing from Ayn Rand.

Exhortations about light bulbs and liberty are good for a rally or entertainment for a cable news sound bite, or a late night comedy show. But there's more going on here.

It's time for us to insist that there is no basis in the US Constitution for home appliance regulations designed to control the consumption of electricity or water. Any such statutes or regulations fail the Rehnquist Court reading of the Commerce Clause, Article I Sec 8 Clause 3: "Congress shall have the power ... to regulate Commerce ... among the several States ... " and usurp the Ninth Amendment from the people.

The central issue is how the Commerce Clause, previously distorted and stretched to underwrite any and every conceivable interference in our daily lives, may have finally found its high water mark under the conservative Rehnquist Court. There is considerable scholarship underlining the original context of the Commerce Clause and its application, notably from Supreme Court Justice Clarence Thomas.

Law Professor Randy Barnett in his 2001 Chicago Law Review article "The Original Meaning of the Commerce Clause" writes at the outset:

In United States v Lopez¹, [a Supreme Court opinion where a federal statute, the Gun-Free School Zones Act of 1990 prohibiting firearms within 1,000 yards of a school, was overturned ]for the first time in sixty years, the Supreme Court of the United States held a statute to be unconstitutional because it exceeded the powers of Congress under the Commerce Clause ². In his concurring opinion, Justice Thomas offered a critique of contemporary Commerce Clause doctrine--based on the original meaning of the clause--that went well beyond the majority opinion. According to Justice Thomas, "at the time the original Constitution was ratified, 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes."³ He also cited the etymology of the word, which literally means "with merchandise."⁴ He then noted that "when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably."⁵ The term "commerce," according to Justice Thomas, "was used in contradistinction to productive activities such as manufacturing and agriculture."⁶

In a Connecticut Law Review article in 1997, law professors David Harlan and Glenn Reynolds, in a prescient overview "Taking Federalism Seriously," ostensibly about partial birth abortion, examined the inconsistencies in using the Commerce Clause to justify regulating any intrastate local transaction depending on the partisan whims of legislators. Harlan and Reynolds derive their thesis also from United States vs Lopez noting the Court struck down the federal statute, not on 2^nd Amendment grounds but on a more sweeping denial of traditional Commerce Clause assertions argued by the government.

Prior to Lopez nearly any product or service transacted locally but made available via interstate transport gave constitutional cover to far reaching federal restrictions and mandates. While the Court in Lopez was mainly preoccupied with federalization of the criminal code, the majority coiled its arguments around the Commerce Clause stem.

Harlan and Reynolds summarize the majority opinion from Chief Justice Rehnquist in Lopez whereby Congress may only regulate "channels of interstate commerce," "instrumentalities of interstate commerce" (transportation modes), and "activities that substantially affect interstate commerce."

And as Harlan and Reynolds note, the abrupt and newly found narrow use of the Commerce Clause did not go unnoticed by dissenting Justices Stephen Breyer and John Paul Stevens. Breyer asserted Lopez is inconsistent with prior Supreme Court jurisprudence while Stevens said Lopez is "radical."

While Harlan and Reynolds are careful not to lend too much significance to Lopez in providing guidance to other Commerce Clause cases, following Lopez there have been two notable Supreme Court cases. United States vs Morrison where parts of the federal statute Violence Against Women Act of 1994 were found to fail the Commerce Clause test formulated in Lopez. And in 2001, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers where the majority found the Corps of Engineers did not have authority to regulate activity in waters isolated from interstate navigable waters. And more recently where Judge Roger Vinson of the Federal District of Northern Florida in State of Florida et al vs United States Department of Health and Human Services struck down the individual mandate of ObamaCare, relying on the Commerce Clause guidance from Lopez.

Harlan and Reynolds cut to the heart of the matter in discussing Justice Thomas's concurrence in Lopez, revealing his own more circumscribed twist than any other conservative on the Court:

While the majority opinion stated that Commerce Clause-based statutes must deal with subjects that "substantially affect" interstate commerce, rather than merely "affect" it, Justice Thomas suggested that the whole "effects" debate was off the point. The power to regulate "Commerce . . . among the several States" means exactly what it says: the power to regulate the interstate buying and selling of goods. "Commerce" means buying and selling things--not manufacturing, and not simply "any form of economic activity."[FN76] The Constitution did not grant Congress power to regulate activities which merely affect (even in a substantial way) interstate commerce.

So, how does all of this affect light bulbs, refrigerators, washing machines, and low flow toilets?

In the case of electrical appliances, including light bulbs, the goal of most recent regulation has been to reduce consumption of electricity. Since electricity consumption, as a matter of both physics and the economic structure of power generation and distribution, is necessarily a local (i.e. state) matter, any regulation at the federal level would run afoul of the Commerce Clause condition "activities that substantially affect interstate commerce" at least as read by the majority conservative justices in Lopez.

Electrical power consumption is local because no homeowner can buy power outside of local utilities who control local distribution. In some states "retail wheeling" exists where a business can cut a deal from an out-of-state energy provider. But the energy is still distributed via a local regulated utility and the user pays two rates -- a base power rate and a distribution rate. Retail wheeling, in any event, is not available to residential customers, as far as I know.

Therefore any regulation on electrical appliances pertaining to energy consumption (read efficiency) can only come from a state, not the feds. In short we don't consume power from an interstate enterprise. We buy power from a local utility. And how about the homeowner who relies on a propane generator, solar panels, or a wind generator? What's interstate about that? Thus the feds cannot regulate residential appliances at least as far as electricity usage is concerned.

What about an argument that appliance standards affect interstate commerce by the impact on CO₂, other air emissions, or use of fossil fuels from interstate sources? That argument fails the "substantially affects interstate commerce" test because residential appliances, especially light bulbs, are used at the time of day, early morning or evening, at the lowest base demand point, thus cannot affect the operation of power plant loadings locally, let alone across the nation.

In other words, light bulbs can be either energy hogs or energy tightwads and have no impact on power generation costs, emissions, or fuel use. If a homeowner uses fewer kwhs, the power plant must still be in operation. If he or she uses more kwhs then the power plant will just soak up otherwise idle on-line capacity already fired up. Because the operation of household light bulbs has negligible effects on interstate generation or transportation of electrical power, any federal statute regulating electrical devices for the consumption of energy must fail the Rehnquist Court test.

Just because light bulbs themselves are traded via interstate commerce does not justify using the Commerce Clause to regulate light bulbs re energy consumption. Certainly Justice Thomas would vacate the EISA 2007 section on the phase out of inefficient incandescent light bulbs without breaking a sweat or writing more than one paragraph.

How about washing machines and Sen. Paul's favorite whipping boy, low flow toilets? Since the primary purpose of washing machine regulations is to conserve the use of water and all residential water use is provided via a local water authority or by a private well, the feds can't possibly assert jurisdiction as long as the Rehnquist Court guidance under Lopez is upheld. Certainly in some western states, water distribution and rights may be conveyed under complex interstate mechanisms. Yes those mechanisms would properly be controlled by Congress under the Commerce Clause, but not individual household water usage.

And just like light bulbs, the use of a single household low flow toilet or water saving washing machine cannot have any affect on the interstate water systems, whether from the flow of water from Lake Superior to the eastern end of Lake Ontario, the Colorado River, the Ohio River system or underground aquifers whose geology may cross under two or more states.

Robert Bork and Daniel Troy in a piece entitled "The Boundaries of the Commerce Clause" have a rather gloomy outlook on whether the Commerce Clause can ever be restored to its original purpose:

There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.

Well ok, let's not try to boil the ocean. Let's start with a simple and symbolic case study -- light bulbs, refrigerators, washing machines, and yes, Rand Paul's low flow toilets.

But Rand Paul has tapped into the frustrations of the majority of regular Americans who are affronted by the arrogance of Congress in taking away consumer choices while interfering with every detail in their daily lives. Can Sen. Paul also be a champion for the Constitution that should be the guarantor of what most Americans would like to believe but few have the resources to assert -- an enumerated power to be left alone?

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