Politicians are always looking for some way to generate publicity. Nothing is too minor or beyond their legal authority. Consider this story on Inside Higher Ed about a House hearing on that great federal issue, getting the right percentage of minority coaches in college sports.
The committee chairman offers the explanation that college sports are big business and assumes that everyone will nod and say, “Oh, of course Congress can regulate anything that has to do with big business.” Article I, Section 8 sets forth the powers of Congress and nothing even remotely suggests that
controlling the percentage of people from minority backgrounds who are hired as sports coaches is among those powers.
But what about the Commerce Clause? Politicians and their intellectual allies like to say that the Commerce Clause is a grant of plenary authority where “business” is concerned. That contention has been destroyed many, many times. One of the most thorough demolition jobs is Richard Epstein’s “The Proper Scope of the Commerce Power” (73 Virginia Law Review, 1387).
In short, the power to regulate interstate commerce does not mean that Congress can tell colleges whom to hire to coach sports.