The Obama administration has quickly withdrawn the farm-chores rule that sent some of us into a minor meltdown earlier this week. Citing the public outcry caused by the rule, the Department of Labor even announced that the rule won’t be pursued for the duration of the Obama administration.
But notice what happened. The federal government tried to adopt a rule that can be justified only as part of an unlimited power to regulate economic activity, a power the federal government was never supposed to have. What stopped it? Not the Constitution, alas, but rather a public outcry.
Well, if the occasional public outcry is the only way to keep the federal government from regulating every single aspect of our lives, we’ve got a problem.
The Constitution’s scheme of enumerated powers presupposes that the Supreme Court is policing the limits. Obama’s attempt to scare the Court away from even inquiring into the constitutionality of a federal regulation of economic activity is entirely consistent with his obvious belief that the federal government’s commerce power is unlimited.
But that vision cannot be squared with constitutional government, or with the rights of political minorities. As Walter Lippmann wrote of Franklin Roosevelt in The Good Society (1937), “the gradual collectivist, under the banner of popular sovereignty, believes in the dictatorship of random aggregations of voters.” That description applies with greater force to Obama, who doesn’t seem to see any danger in unlimited government. He seems not to understand that unlimited federal power will inevitably crush minority rights and disenfranchise all sorts of communities at every other level of society.
The Constitution was designed to protect against the tyranny of the majority, which is why the Supreme Court’s decision in Wickard v. Filburn (1942) was such a mortal blow to constitutional government. When will the Court finally own up to its devastating mistake?
— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.