The Supreme Court has been inching toward this decision for the last several years. In case after case, the court has grown increasingly bold in stripping the federal government of its ability to make decisions on behalf of the American people.
In 1995, in United States v. Lopez, the court said that Congress could not ban possession of guns near schools. Why? Because Congress did not provide evidence of the impact of guns and gun violence near schools on interstate commerce. Accordingly, Congress provided voluminous evidence of the serious impact of gender-motivated violence on interstate commerce. Four years of hearings and a massive legislative record showed that violence against women prevents a discrete group - women - from participating fully in the day-to-day commerce of this country. We found that violence and the threat of violence do indeed affect women's decisions about where to take jobs and when to travel.
But instead of applying the traditional "rational basis review" to decide whether Congress's findings were appropriate, the court disagreed with those findings. This marks the first time in more than 60 years that the court has rejected explicit factual findings by Congress that a given activity substantially affects interstate commerce. In fact, the court declared such findings to be "ultimately a judicial rather than a legislative question."
I disagree. It is precisely Congress' job to be accountable to the people and, therefore, to be the judge of what does and does not ultimately affect interstate commerce, based on our own findings. As Justice David Souter put it in his dissent, whether this activity has an impact on interstate commerce "is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours."
The court's decision Monday reads more like a decision written in 1930 than one handed down in 2000. The court appears to be turning back the clock to the type of commerce clausereasoning that characterized the pre-New Deal era, when manufacturing, mining and production were all held off-limits to Congress despite their obvious impact on interstate commerce.
Now the Supreme Court is basing its ruling not on whether the activity has an economic impact but rather whether the activity itself is inherently economic.
Categorically foreclosing certain spheres of activity to Congress did not work in 1930, and will work no better now. It is impossible to develop judicially defined subject-matter enclaves dictating the outer boundaries of Congress' commerce clause power. Congress, not the courts, must remain principally responsible for striking the right balance in our federal system.
So why has the court revived a form of analysis that so ill-served the nation in the years leading up to the judicial crisis of 1937? In both eras the court adopted these formalistic distinctions in interpreting the commerce clause in service of broader political visions shared by a majority of court members.
This court, molded by conservatives, has proven eager to substitute its own judgment for that of the political branches democratically elected by the people to do their business. As Justice John Paul Stevens declared in a recent dissent, "The importance of respecting the Framers' decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority's repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President."
This "judicial activism," he continued, "represents such a radical departure from the proper role of this court that it should be opposed whenever the opportunity arises."
This is one senator who intends to keep up that opposition.
U.S. Sen. Joseph R. Biden, Jr. is a Democrat who represents the state of Delaware.