The Odd Clauses

by Jay Wexler

  In constituting our government, the first thing the Constitution does is to create the Congress and give it powers: All legislative Powers herein granted shall be vested in a Congress of the United States. Importantly, the powers given to Congress are not those that are “out there in the world,” or those that “one might be able to imagine while tripping,” or anything like that, but rather those powers “herein granted.” This means that Congress can only exercise the specific powers contained somewhere within the Constitution itself. Congress, in other words, does not have some sort of roving general power to just do whatever it wants.

  The Constitution gives Congress a lot of different powers. Working backward through the Constitution, the first place to stop is Section 5 of the Fourteenth Amendment, which gives Congress the power to enforce that amendment’s guarantees of equal protection and due process of law against infringement by the states. Congress relied on this power, for instance, when it passed Section 4(e) of the 1965 Voting Rights Act to prevent states from imposing English literacy tests on potential voters. Then there is the so-called property clause of Article IV, Section 3, of the Constitution, which gives Congress the power to “make all needful rules and regulations respecting the territory or other Property belonging to the United States.” Nearly one-third of the land in the United States is owned and managed by the federal government, and Congress has used its power under the property clause to carve out from this land our national parks, national forests, wildlife refuges, and all sorts of other designated areas to promote things like endangered wolves, pristine hiking trails, and the clear-cutting of old-growth forests.

  Apart from these isolated powers found here and there in the Constitution, however, by far the largest collection of powers is contained in Article I, Section 8. This section is essentially a laundry list of legislative powers. It’s kind of a long section, but since it’s so important, I thought I’d try to summarize it in the following sentence: Congress may impose taxes, borrow money, regulate commerce, make immigration and bankruptcy rules, coin money, fix the standard of weights and measures, punish counterfeiting, establish post offices, grant copyrights and patents, create lower courts, punish piracy, declare war, create and manage the army and navy, legislate for the District of Columbia, make any law that is “necessary and proper” for carrying out these other powers, and do a few other complicated things that I can’t figure out how to summarize.

  It might not be immediately apparent, but by far the broadest of Congress’s Article I, Section 8, powers is the power to “regulate commerce . . . among the several States.” Congress has relied on this “commerce clause” power to justify countless laws over its history, including, for example, most federal criminal laws you can imagine. The commerce clause is also the main source of almost all federal regulatory law, from FDR’s New Deal to the environmental movement of the 1970s to the recent (but a little late) wave of financial regulations intended to protect investors from the devious doings of the economic elite.

  Although courts used to interpret the commerce clause kind of stingily, these days Congress has wide leeway to enact legislation that has any kind of relationship to interstate commerce. The Endangered Species Act, for example, makes it illegal to “take” any species listed by the secretary of the interior as being endangered. The statute defines “take” as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” It also makes it illegal to attempt to do any of these things, so if you happen to run into a black-footed ferret out on the prairie somewhere, make sure you don’t even try to harass it. For some endangered species—those which are studied extensively, for example, or which are endangered because some part of them (their fur, their allegedly aphrodisiac body oils) make them targets for poaching—it is reasonably clear why the commerce clause would give Congress the power to protect them. For other species, though, like those cave spiders or tiny toads that live only in a confined area completely within the boundaries of one state, it’s not so clear. Why should Congress be able to make it illegal for me to try to harass a spider that lives only in one small cave somewhere in the middle of Texas?

  Conservative states’ rights advocates have challenged numerous applications of the Endangered Species Act to isolated animals like cave spiders or tiny toads, but so far the lower courts (the Supreme Court has yet to weigh in) have all upheld the statute as justified by Congress’s commerce power. The courts have not, however, been consistent in their rationales. Some courts have said that protection of these critters is justified because all species are interrelated in some way, and so saving one species helps ensure that all species, including those that are more directly related to interstate commerce, will flourish. Other courts, however, have relied on the fact that most harms to these isolated creatures come from some kind of real estate development, which is itself clearly related to interstate commerce. As one judge applying this approach put it in a case involving a California toad: “The ESA regulates takings, not toads. . . . The ESA does not purport to tell toads what they may or may not do.”

  Still, though, even the modern Court has imposed some restrictions on Congress’s power to make laws using its commerce-clause power. After about sixty years of letting Congress do whatever it wanted, the Court in a 1995 case called United States v. Lopez suddenly cut back on Congress’s power under the commerce clause when a slim majority of the justices held that the legislature could not make it illegal for someone to possess a gun within five hundred feet of a school. I remember the day the case came down. I was a first-year law student, and that day my constitutional law professor came into the class and launched into a long diatribe about the decision. The diatribe lasted for maybe five class sessions. Since we hadn’t studied the commerce clause at all, none of us had any idea what our professor was talking about, but we did understand that something big had happened. Five years later, the Court made it clear that it wasn’t joking around in Lopez when it struck down the Violence Against Women Act as being outside Congress’s commerce clause power. Since then, the Court has eased up a bit on its commerce-clause smushification project, holding in 2005 that Congress did have the power to enforce controlled-substances laws against local growers of medical marijuana in California, although it’s quite possible that this decision reflected the justices’ views on smoking weed a lot more than their feelings about the proper limits of congressional power.

  Having made this little detour through the Constitution, it is now time to return to Mars and one of Congress’s often overlooked powers: The Congress shall have Power To . . . fix the Standard of Weights and Measures. Even Congress itself has tended to overlook the weights and measures clause; one prominent constitutional historian has pointed out that the weights and measures power was the very last power that Congress ever exercised. Not that Congress hadn’t considered exercising the power quite early on in the history of the Republic; indeed, the question of whether the Congress should fix the standard of weights and measures and, more specifically, whether it should adopt the metric system that the French first adopted in the late eighteenth century, was a question of great importance in early US history. The story of how Congress has dealt with the possibility of adopting the metric system over the course of the past two hundred years is a fascinating one that nicely illustrates some important aspects of the American legislative system, including the critical issue of how citizens should allocate responsibility for policymaking failures among the various branches of the national government.

  As early as 1790, President George Washington urged Congress to consider standardizing the nation’s weights and measures. Congress, in turn, requested Washington’s secretary of state, Thomas Jefferson, to write a report on the matter. Jefferson wrote that report, urging Congress to standardize weights and measures and describing two possible plans, one involving the traditional crazy feet-and-pounds system and the other using the crisp and rational French metric system. A congressional committee apparently recommended adopting t
he metric system, but nothing ever came of it. In 1816 President James Madison brought the issue up again with Congress, and Congress once again asked the secretary of state to prepare a report. This time the secretary of state was John Quincy Adams. Four years later, Adams submitted his 250-page monster of a report. In excruciating detail, Adams traced the history of weights and measures through the Greeks and the Hebrews, quoted at length from the Prophet Ezekiel, and discussed the effect that the great flood (the one that Noah had to build an ark for) must have had on any preexisting uniformity of weights and measures.

  Adams’s report was praised to the heavens by some of his contemporaries, but for me, it was damned near impossible to read. In fact, I pretty much gave up when I got to an impenetrable passage about an English law from the year 1266 that purported to describe exactly how many pounds a “farthing loaf” of bread, whatever that is, was supposed to weigh. Anyway, from what I could tell by skimming the rest of the report (and the much more succinct summaries of the report that I could find online), Adams thought it was a good idea to standardize the nation’s weights and measures, but he thought it would be a bad idea to adopt the metric system. Among other things, Adams thought it would make no sense to adopt the measurement system of France when most of our commerce was still with England. Not a bad point. In any event, by all accounts, Congress completely ignored Adams’s report and did nothing much of importance about weights and measures for another fifty years.

  The metric system issue came up again in 1866. In that year, Congress passed a law that made it legal for merchants to use the metric system in the United States and provided that “no contract, or dealing, or pleading in any court, shall be deemed invalid or liable to objection, because the weights or measures expressed or referred to therein are weights or measures of the Metric System.” At the same time, the chairman of a House of Representatives committee on uniformity of weights and measures called upon a committee of academics at the State University of New York in Albany to prepare a report on the issue of whether Congress should adopt the metric system as the uniform weights-and-measures system for the nation. This report, much shorter and more accessible than Adams’s tome, concluded once again that the United States should keep the zany English pound-and-foot system.

  The report rejects the idea of adopting the metric system for a variety of reasons, some pragmatic and others more theoretical. From a pragmatic perspective, the report cites the old “how can we make a change when England hasn’t changed” argument, and it also makes a big deal of what a huge pain it would be to convert all the traditional measurements into a newfangled system. The writers further suggest that, given these difficulties, the American people would be unlikely to accept any new system of measurement, particularly one from France: “That the conflict will be fierce in this country, where the people are freer and less habituated to blind obedience to imperial edicts, cannot be doubted,” write the authors of the report, “nor will the fact that the system comes from a foreign country, whose language and institutions are alike unknown to us, be without its influence.”

  The more interesting of the report’s arguments are the ones that defend our traditional system as actually being better than the metric system. Better? Really? Why? Well, for one thing, the traditional system is better because its basic measurements of length—the foot, the yard, the cubit, the fathom—are all derived one way or another from the human body (the yard, for instance, is described as being “the average distance from the centre of the lips to the extremity of the middle finger, when the arm is extended”—who knew?). Such a system of natural referents, it is suggested, is “more likely to meet the wants of a people than one made amid the turbulence of a revolution, by a committee of learned professors.” Moreover, the “short, sharp Saxon words” like “gallon” or “ton” or “bushel” are superior to the long, complicated terms of the metric system, like “demi-decigramme.” Indeed, our system is overall much simpler than the alternative, as the authors try to argue by comparing how the two approaches would describe a plot of land: “Every lot of ground 25 feet front, by 100 feet deep, must be described as follows: 7 metres, 6 decimetres, and 2 centimetres front, by 30 metres, 4 decimetres, and 8 centimetres deep. Thus, the description of every such lot will require three different units and six words, instead of one unit and two words.” Notice how deceptively absurd it was for the report writers to choose simple numbers from the US system instead of from the metric system; if the lot instead happened to be 30 meters by 10 meters, we would have to say that it was 98 feet and 5.102362204724159 inches by 32 feet and 9.700787401574757 inches. Not so simple anymore, eh? Finally, according to the report, the “base” measurements of the metric system are problematic, either because, like the meter, they are too big, or, like the gram, they are too small, as the authors explain using the example of an absolutely enormous steak dinner: “Hence the weights of all common articles are expressed in very large numbers. For example, a piece of beef, for dinner, which we designate by the modest number, 14 pounds, would have its weight expressed by 6,356 grammes.” Oh, heavens! Can you imagine what a nightmare it would be to live in such a world?

  The authors also totally unload on the meter. Not only is it too big, but it is also a “fact well known to all men of science” that the meter is “neither a true nor an accepted standard.” At the time, the meter was defined by reference to the earth’s circumference; specifically, it was defined as being equal to 1/10,000,000 of the distance around the earth of the longitudinal line passing through Barcelona and Dunkirk. Admittedly, that does seem a little more complicated than the average length of a human foot, but the authors of the report go further to criticize the “choice made of the circumference of the meridional or generating ellipse of the terrestrial spheroid, in preference to its axis of revolution,” which they contend makes the meter a “sin against geometrical simplicity.”

  Now, I don’t have any idea what any of that means, but I do wonder whether the authors of the report would think differently now that the meter is defined not in terms of the earth’s circumference but rather as the distance traveled by light in 1/299,792,458th of a second. My guess is that the change wouldn’t have much impressed those grumpy old guys, but apparently the measurement is incredibly precise and stable. Maybe the authors of the report would have turned their ire instead upon the kilogram, which is defined by a platinum-iridium cylinder crafted in 1889 and kept in a chateau outside Paris, where, much to the chagrin of French scientists, it is losing a tiny bit of weight every year.

  Skip ahead now approximately one hundred years. In the mid-1960s, England adopted the metric system, thus placing lots of pressure on the United States to do the same. In 1968 Congress authorized the National Bureau of Standards to undertake a three-year study on what should be done about the metric system in the United States. The bureau completed the study, and in a report entitled A Metric America: A Decision Whose Time Has Come, urged the country to begin a ten-year conversion process to the new measurement system. Congress didn’t quite follow the bureau’s advice, however. It passed a law called the Metric Conversion Act of 1975, which came far short of initiating any sort of obligatory conversion to metric. Although Congress recognized that the United States “is the only industrially developed nation which has not established a national policy of committing itself . . . to the metric system,” and declared in Section 2 of the act that the “policy of the United States shall be to coordinate and plan the increasing use of the metric system,” the law did not mandate that anyone at all had to start using the metric system or even to start thinking about maybe using the metric system anytime in the near future. Instead, Congress created an agency called the United States Metric Board, “to devise and carry out a broad program of planning, coordination, and public education, consistent with other national policy and interests, with the aim of implementing the policy” of the statute.

  All Congress did in this law, then, is to delegate consideration of this whole metri
c thing to a federal agency made up of seventeen presidentially appointed individuals. If you now reread the weights and measures clause (“Congress shall have Power To . . . fix the Standard of Weights and Measures”) and then pause to emphasize a couple of times the first word of that clause, you might wonder whether this arrangement is constitutional. After all, the Constitution gives the power to fix the standards of weights and measures to Congress, not to some goofy seventeen-member board that Congress creates so that it can avoid having to decide what to do about fixing the standards of weights and measures. What gives?

  This question of whether Congress, whose members are elected and therefore accountable to the people, may delegate its constitutional powers to an agency run by unelected appointees is one of the central conundrums of American constitutional law. It is an undeniable fact that most of the laws that govern almost every aspect of our economy come from federal agencies rather than from Congress. Think about environmental law for a second, for example. Sure, Congress has passed some incredibly important legislation to protect the environment—the Clean Water Act and Endangered Species Act come to mind—but who do you think really decides exactly what animals are endangered or how much nickel per gallon of wastewater a plant can discharge into a river? Federal agencies make these decisions, not Congress. And it’s the same for all the other agencies that regulate nearly everything we do, from aviation (the Federal Aviation Administration) to labor relations (the National Labor Relations Board) to securities trading (the Securities and Exchange Commission) to food policy (the Department of Agriculture) to a thousand other things. Whether it’s because members of Congress don’t have the time to deal with lots of specifics, or they feel that an agency full of experts would be more likely to do a good job with them, or they just don’t want to take the political heat for unpopular decisions (it’s a lot less risky to stand up for endangered species generally than it is to stop a $100 million development project because it might harass a couple of black-footed ferrets), Congress regularly lets the agencies deal with the details of federal law and policy.