Thomas, J., concurring
to trade or exchange.” Ibid. (citing Lopez, 514 U. S., at 586–587 (Thomas, J., concurring); Barnett 112–125).[1] By departing from this limited meaning, the Court’s cases have licensed federal regulatory schemes that would have been “unthinkable” to the Constitution’s Framers and ratifiers. Raich, 545 U. S., at 59 (opinion of Thomas, J.).
Perhaps nowhere is this deviation more evident than in federal environmental law, much of which is uniquely dependent upon an expansive interpretation of the Commerce Clause. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 281–283 (1981); see also Brief for Claremont Institute’s Center for Constitutional Jurisprudence as Amicus Curiae 17–25. And many environmental regulatory schemes seem to push even the limits of the Court’s New Deal era Commerce Clause precedents, see Hodel, 452 U. S., at 309–313 (Rehnquist, J., concurring in judgment), to say nothing of the Court’s more recent precedents reining in the commerce power. See, e.g., SWANCC, 531 U. S., at 173–174; cf. Rancho Viejo, LLC v. Norton, 334 F. 3d 1158, 1160 (CADC 2003) (Roberts, J., dissenting from denial of rehearing en banc) (“The panel’s approach in this case leads to the result that regulating the taking [under the Endangered Species Act] of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce among the several States’ ” (ellipsis omitted)).
- ↑ Further scholarship notes that the term “commerce” as originally understood “was bound tightly with the Lex Mercatoria and the sort of activities engaged in by merchants: buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.” R. Natelson, The Legal Meaning of “Commerce” in the Commerce Clause, 80 St. John’s L. Rev. 789, 845 (2006). This “did not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely ‘substantially affected’ commerce; on the contrary, the cases included wording explicitly distinguishing such activities from commerce.” Ibid.
