I was trying to think of a good example to illustrate the Federal government’s lack of a general police power as opposed to the states’ inherent police power, with an example that doesn’t implicate serious “substantive due process” concerns. So here goes: All states have compulsory schooling laws, some to age 18, others to age 16. No one seriously questions the constitutionality of these laws.
But let’s say the Federal government decided to pass legislation, modeled on longstanding state laws, requiring all residents of the United States to attend school until age 18 or face [some penalty–a fine, or being drafted into “national service” or whatever]. A resident of a state where schooling is only mandatory until age 16 sues, claiming that this is beyond Congress’s enumerated powers.
The government claims that it has the authority under its Commerce power to require school attendance. After all, not only is education is a huge percentage of the American economy, the federal government already regulates the education market to a substantial degree and spends tens of billions of dollars annually for education, money that will to some extent be wasted if children don’t continue their education at least through high school. Thus, it’s both necessary and proper that the government impose an education mandate to ensure that it’s education policies will be successful.
To the argument that a sixteen year old dropout isn’t engaged in economic activity, the government argues that staying out of school is itself an economic activity, because, among other things, it reduces the amount of federal and state aid to one’s school, makes one less marketable in the employment market, reallocates resources that would otherwise be spend on the dropout’s education, and makes it more likely that one will need to spend money on education in the future. Moreover, no one is really “out” of the education market, because everyone is learning things all the time, whether from t.v., one’s friends, Facebook, or formal schooling. Finally, by dropping out of school, a sixteen year old is raising the expected costs to the government and society of future crime, welfare payments, and the like.
Anyone think the government should win?
UPDATE: The government has at least one more argument: Given interstate mobility, the dropouts from “16” states may move to other states and impose costs on them due to their lack of education. Nevertheless, I have a hard time seeing these arguments getting five votes from the current Court.