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No Virginia, there is no Santa Clause


      In June of 2002, the Home Depot company earned widespread admiration for courageously (and wisely) electing to cease doing business with the federal government in order to free itself from federal interference with the company’s policies and practices.  The company specifically indicated that it was declining any entanglement "that would cause the company to be covered by or responsible in any way for compliance with [three federal laws or executive orders]", specifically:

  • Executive Order 11246 of 1965, which prohibits employment discrimination by federal government contractors and subcontractors against any employee or applicant for employment because of race, color, religion, sex or national origin

  • Section 503 and Section 505 of the Rehabilitation Act of 1973, which requires affirmative action; and

  • The Vietnam Era Veterans' Readjustment Assistance Act of 1974, which requires that anyone doing business worth $25,000 or more with the federal government must take affirmative action to hire and to promote qualified targeted veterans, including special disabled veterans, veterans of the Vietnam era, and any other veterans who served on active duty during a war or in a campaign or an expedition. It would apply to Gulf War veterans and those fighting the war on terrorism.”

The company subsequently reversed itself amid a flurry of news stories about brave GIs turned away from buying shingles with which to keep the cold rain out of their lonely and humble barracks.  However, Home Depot’s short-lived flirtation with standing erect reminded those who took note that much-- in fact almost all-- of the truly destructive and offensive public policy with which the country is afflicted is not actually law.  Rather, it is a consequence of a sustained effort to coax or intimidate or fool the population into treating federal agency rules and the like, with authority solely over federal government entities, as law, in order to allow a pandering political machine to buy, through gifts of policy outside (or contrary to) its authority, the support of various special interest beneficiary groups.

Of course, Home Depot’s loud, public-spirited announcement of its departure from the reservation was far from the first time that it has been pointed out for public notice that suffering either the punitive enforcement or the harmful impact of compliance on the operations of an individual business from such political overreaching is self-inflicted.  But this expression by a $53 billion per year company which can obviously afford competent legal advice-- and has a great deal at stake-- demanded an attention which might be not be afforded to voices of lesser stature.

Although the policies to which the home improvement retailer objects (and others like them) do indeed have varying authority over government employees, and residents of U.S. possessions and territories over which the federal government exercises municipal jurisdiction, they have no lawful application to private businesses and persons within the several states-- despite being carefully crafted to appear otherwise.  The judicious choice of which court challenges to settle and which to allow to proceed to an opinion; control over the public schools through which most citizens are provided with their views; and the careful exploitation of resources and power to encourage a go-along-to-get-along mentality in those of sufficient means to force an irrepressibly visible and sustained revelation of the truth have permitted the political and special-interest beneficiary classes to create an impressive illusion to the contrary.  However, any serious analysis of these claims of general authority readily reveals that they are fictions.


     (The undiscriminating consumer of state propaganda might be forgiven for being somewhat at a loss at this point, … in fact such a one might still be rereading the bits about Executive Order 11264 and employment discrimination in Home Depot’s casus belli enumerated above and not even be with us any longer.  Why, such a reader would be wondering, would Home Depot do anything to sacrifice business over an executive order that merely duplicates a federal law, the Civil Rights Act of 1964, which mandates the same things and to which everyone in the land is supposed to be subject?

We will explore that Act a bit, for the edification of such a reader).


The Civil Rights Act of 1964, among other things, bans discrimination against any individual in employment “because of such individual's race, color, religion, sex, or national origin;” by any business engaged in “commerce”.  Congress deploys the latter term in an effort to invoke a mantle of legitimacy through a deliberate misuse of what, to a casual and untutored eye, is an ambiguous term in the federal government’s power to regulate commerce among the several states.  “Commerce” is defined within the relevant portion of the act as,

(g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.”

     Leaving aside that congress has no authority to define for its own purposes a Constitutional term to which it is itself subject, it is an impossible stretch to morph private, retail sales to more-or-less anonymous walk-in customers into “trade among the several States”, or “traffic, commerce or transportation among the several States”, etc., or into any such activity between a State and anywhere or anything else; and, as far as I know, “points” don’t engage in trade, etc., whether by way of an intermediary of their kind in another State or not.  The careful reader will note that the statute deliberately avoids any reference to people, or citizens, which is significant and instructive.

     The power conveyed by Article 1, section 8, Clause 3, in the shadow of which the Civil Rights Act seeks to walk, is, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  Its purpose, according to James Madison, the Father of the Constitution, is "the relief of the States which import and export through other States, from the improper contributions levied on them by the latter".  (In other words, preventing one State from taxing goods passing through it into another).  In no respect does the language of the clause, or any rational interpretation thereof, translate into a grant of authority over the private acts of individual citizens.  Rather, its authority is clearly confined solely to those acting as agents of a State government.

     Thomas Jefferson, discussing a proposal to create a national bank, expressed the nature of the authority granted by the commerce clause thusly:

"...if this was [alleged to be] an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes."

     (It is important to remember that the federal government was formed by the several States, acting in their corporate (corporeal) capacities, to be a government over those several corporate States.  Although its authority does ultimately come from the people, it is not directly a creature of the people in their individual capacities, and it has no authority to act directly upon the people in their individual capacities except insofar as individuals hinder the accomplishment of its delegated responsibilities.  Even then, of course, such direct contact with a citizen can occur only within the strict limits expressed in the Bill of Rights and elsewhere.  Such limits are those which must remain supreme and inviolate even over federal claims of necessity and propriety in the exercise of its delegated powers.)

     In United States v. Lopez 514 U.S. 546 (1995) the U.S. supreme court resurrects its original jurisprudence in this respect, quoting John Marshall’s delineation of the meaning and limitations of the commerce clause in Gibbons v. Ogden, 9 Wheat 1, (1824):

"It is not intended to say that these words comprehend that [type of] commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.”

"Comprehensive as the word `among' is, it may very properly be restricted to that commerce which concerns more States than one. . . . The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State."

Proceeding to disparage and reject the government’s attempt to creatively apply the clause in the case then under consideration (concerning the federal government’s attempt to argue that, as guns are manufactured through processes involving facilities in more than one State, and in any case are distributed and vended across State lines, it could claim authority over the possession and use of them by individual citizens), the court says,

“Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of 922(q) [the law in question], it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.”


     Shortly after the Lopez decision, the court proceeds to iterate the same perspective in the Morrison case (120 S. Ct. 1740, 2000) (involving an effort by the federal government to assert jurisdiction over acts of violence of one citizen upon another), holding that, although the actors whose behavior the government was attempting to reach might be personally involved in interstate commerce, and may even be arguably inhibited in such involvement, it is an unsupportable stretch of the commerce clause  power to thus extend it over individual behavior.  In so dismissing the latest desperate argument by the government, the court essentially says that even the claim of some overarching "regulatory scheme" cannot bring something outside of the proper scope of the clause under the control of congress.  That same year, the court threw out a federal law against arson (Jones v. United States, 99-5739, 2000) which asserted its validity based upon the clause.

     Clearly, the individual employment policies of any particular private (non-governmental) company, or even all private companies, not located in a U.S. territory or possession and having nothing to do with commerce by or among agents of the several States, are outside of the purview of congress and the Civil Rights Act.  Home Depot understands this, and stood tall, though, sadly, only briefly.

     That the federal government, despite its presentments to the contrary, also understands this is revealed by a curious timing.  Recalling the pretensions to universal applicability of the Civil Rights Act, read the relevant text of the Executive Order 11246 to which Home Depot referred in it’s announcement:

"Sec. 202. Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

During the performance of this contract, the contractor agrees as follows:

(1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.


     The language here is slightly more explicit than that in the Civil Rights Act, but only slightly, and even so, there is nothing here that is not clearly comprehended, by implication at the very least, within the discrimination-barring language of that Act (which was, in any case, readily available for amendment).


     The Civil Rights Act was signed into “law” on July 2nd, 1964.  Executive Order 11246 was issued September 28th, 1965.




     Over the last 65 years or so, since FDR’s frank declaration to the Supreme Court that if that body wouldn’t declare his administration’s seizure of undelegated powers to be Constitutional, he’d add to it enough of his lackeys to form a majority who would, the commerce clause has become the fig-leaf for a host of unlawful (hence, void) assertions of federal power.  In addition to the Civil Rights Act, these “commerce” related assertions have been used as the basis for most gun control acts, and to launch the Department of Agriculture, the Food and Drug Administration, much of the Department of Labor and many other congressional playgrounds.  Department of Justice attorneys routinely deploy the “commerce clause” language as a justification for other acts of congress, such as the Fair Housing Act, in which no specific allegation of Constitutional authorization is made.  It is a catch-all, magical phrase conveying unlimited power... at least insofar as any particular victim does not know to challenge its application or that of an act upon which it is based, which is true of too many.  I expect the DOJ and members of congress think of it as “the Santa Clause”.


     Happily, as evidenced by the rulings cited earlier and others, today’s supreme court has more-or-less unambiguously expressed a determination to restore clarity in this area, both because even a court that really wants to kowtow to congress can only stomach so much nonsense in its rulings, and because this court is tired of kowtowing and wants to reassert itself as a co-equal branch of government.  It’s just waiting for a victim who will, as Home Depot briefly did, take a stand, and, going the home improvement giant one better, stick to its guns.


© Peter E. Hendrickson

An outstanding study of this issue by Professor Randy Barnett of the Boston University School of Law can be found here