Jonathon Adler argues that Senator Feinstein grossly exaggerated the number of cases where the Supreme Court said the Congress had exceeded the bounds of the commerce clause. Feinstein said it was dozens of times in the last 10 years, Adler counts about two. I don't have my own count, but smaller numbers seem right to me -- just look at the extent of activities Congress currently pursues under the banner of the Commerce Clause. For god sakes, several years ago the Supreme Court ruled that federal marijuana laws trumped state laws based on the commerce clause -- even when the drugs are grown for personal use and don't cross state lines. As Clarence Thomas wrote in that case in dissent:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.
But what I found really depressing in Adler's post was this:
Adding up all of the cases in which the Court found statutes exceeded all of the federal government's enumerated powers, including the sovereign immunity cases, the commandeering cases, and the 14th Amendment cases, in the last twenty years still doesn't get us to the three-dozen-plus cases Feinstein claimed. Add in the federalism-related constitutional avoidance cases, and we're still a ways off.
Given all the expansions of federal and Executive power over the last 10 years, and the hundreds of cases in front of the Supreme Court, the Court has not been able to rouse itself more than a handful of times to declare that the feds have exceeded their powers under the Constitution? Bummer.