[publius42]

Originally Posted by BillCA

The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce.

That's true, and it will involve reversing the Wickard and Raich precedents, something none of us will live to see the Supreme Court do.

I remember following the oral arguments in the Raich case on the legal blog sites, and Scalia was reported to have kept hammering Raich's attorney on the same question: how is this different from the Wickard case? There really is no satisfactory answer, though there are some differences. The issues are fundamentally the same, and Scalia was not willing to overturn Wickard. Neither were O'Connor and Rhenquist, for that matter. Only Justice Thomas, dissenting alone, was willing to acknowledge what will be needed to limit the commerce power. He said:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

...

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ ” New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.

Wickard and Raich have got to go if we are to return to Madison's vision of the commerce power:

13 Feb. 1829
Letters 4:14--15 James Madison to Joseph C. Cabell


For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.