Over time, the powers of the federal government have grown.
Occasionally, the Supreme Court has tried to push back against that growth,
most notably when it resisted President Franklin Roosevelt's New Deal
programs in the 1930s.
But the court backed down then.
And from about 1935 to 1995, it seemed that Congress could actually do
most anything it wanted with the commerce power.
Congress could regulate anything that substantially affected
interstate commerce, the court said.
And almost everything does.
In 1995 though, things seemed to change again, at least a little bit.
The Supreme Court said that Congress couldn't regulate intrastate
non-commercial activity.
If you don't cross a state line and you're not engaged in commerce, buying or
selling things, then Congress can't regulate it, the Court said.
Unless, it added in 2005,
that regulation is part of a larger scheme that does aim at commercial activity.
The 2005 case was about marijuana.
And what the Court said was that even though mere possession of
marijuana isn't economic activity.
And even though people might be growing their own and not crossing state lines,
Congress' attempt to stamp out the interstate market for
marijuana, allowed them to prohibit mere intrastate possession as well.