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Comment by smoothgrips | Hacker News Reader

I've often wondered if the NSA is constitutional. Not what they're doing, but the organization itself. The constitution, from my understanding, grants the federal government power to do certain things. Therefore, if the constitution doesn't specifically grant the federal government the power/ability to run, say the NSA (or other federal department), does that not warrant the entire thing unconstitutional?

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Not really; the Constitution establishes the Federal government as responsible for national defense. Assuming you can construe the NSA as necessary for national defense then the NSA is constitutional (though not necessarily its activities).

Technically speaking, you are correct. Practically and legally, everything Congress does is jammed through Article I Section 8 of the Constitution, which grants it the authority to "regulate" interstate commerce.

Also, what w4 said. But again if you want to get technical, the Constitution restricts Congress's authority to provide for the common defense to having an army or a navy, but not an Air Force, and not a National Security Agency.

and boy, does this need an amendment: when a farmer can be sued and forced to not grow food for his own family, and the suit is found valid because of Article I Section 8 we have a huge problem.

Eh? What's this?

There's a structure in the US and its states that regulate what (subsidized?) farmers can grow. I don't know if it's solely the USDA. Anyway, if a farmer is supposed to be growing soybeans, they cannot grow (for example) potatoes. There have been cases of farmers having crops meant for family consumption that have been sued (or raided? -- something way over the top for the violation, anyway). IIRC, the big gun that it used is the interstate commerce clause. So if a spud farmer in Idaho wants a few bushels of wheat for his family, his growing it would (supposedly) impact market value on wheat prices.

There's some scary stuff in the farming regulation. There was a law in the works called NAIS (national animal ID system)that severely intrudes on people's right to raise their own livestock. It was stirring up a storm of controversy in homesteaders' circles a decade ago, though I don't know the current state of that is.

I assume tertia is referring to something like https://en.wikipedia.org/wiki/Wickard_v._Filburn

A mischaracterization of Wickard v. Filburn, which is nonetheless one of the worst decisions ever handed down by the Supreme Court - taking an unusual circumstance that obtained during WW@ and generalizing it to a fundamental aspect of the Commerce power. However, it's sort of off-topic here. Wikipedia has an extensive discussion of the case.

> A mischaracterization of Wickard v. Filburn, which is nonetheless one of the worst decisions ever handed down by the Supreme Court - taking an unusual circumstance that obtained during WW@

While, the court process and decisions occurred during WW2, the law and the acts which, under it, created the controversy occurred before US involvement in WW2, it was more about the Great Depression/New Deal than the War.

You're right, but I have always felt that the urgency of the wartime context tilted the balance of the court's opinion towards an overbroad endorsement of the government's side, and that that tilt has persisted via precedent.

I will go back and reread it to see whether that impression is correct or whether I've imputed my own bias to the court's decision since I read it, but given that I'm generally of a more statist bent than most people here I don't think it's just personal bias.

Wickard v. Filburn established that all activity, including washing your dishes, is economic activity that congress can regulate under the commerce clause.

No, Wickard v. Filburn didn't establish that that is true of "all activity", and if one thought that it did then one would be forced to conclude that that result was overturned in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000).

> Practically and legally, everything Congress does is jammed through Article I Section 8 of the Constitution, which grants it the authority to "regulate" interstate commerce.

Actually, virtually all of Congress' enumerated powers are in Article I, Sec. 8. The interstate commerce clause, specifically, is unlikely to be cited in a defense of the NSA -- more likely, the Necessary Proper Clause of Art. I, Sec. 8, along the military powers in the same section (and the obligation to protect the states against invasion in Art IV, Sec. 4) would be more likely -- those who view the designation of the President as Commander-in-Chief of the military in Article II as a power of that office might be inclined to cite that "power" along with the Necessary and Proper Clause of Art. I, Sec. 8, instead.

> But again if you want to get technical, the Constitution restricts Congress's authority to provide for the common defense to having an army or a navy, but not an Air Force

It allows Congress to raise "Armies" (plural) and a Navy, and it allows Congress to choose how to equip and train the Armies it raises. I don't see that it prevents it from choosing to a equip one of the armies primarily with fixed-wing aircraft, training it in doctrine for employment of such equipment, and give it the name "Air Force" to distinguish it from other armies that are differently equipped and trained.

Modern interpretation of the commerce clause, as spoken about in Thomas' dissent in Reich v. Gonzales, means that the 10th amendment is relatively meaningless nowadays. Combine this with the Unitary Executive (bush/Cheney's keystone), and you have a congress with all the power to ignore government limits, controlled by the executive branch.

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