Over the past hundred years, the Commerce Clause has supplanted the Taxing Clause as the favored justification for federal lawmaking.
Last week, supporters of the Second Amendment applauded a Texas federal judge’s ruling that several nationwide gun regulations were unconstitutional. Yet the decision did not hinge on whether gun rights ought to prevail; it underscored a broader truth: the federal government’s powers are limited to those expressly granted by the Constitution.
The dispute centered on the National Firearms Act (NFA), a 1934 statute aimed at weapons and accessories believed to be favored by criminals. Because the law was crafted as a revenue measure, U.S. District Judge James Hendrix determined that Congress fatally compromised the constitutional basis for some provisions by eliminating the federal taxes on manufacturing and transferring sound suppressors, short-barreled rifles, and short-barreled shotguns.
Congress did that last year, when it enacted a law that kept the NFA’s taxes on machine guns and “destructive devices” such as bombs and grenades but repealed the taxes on all other items covered by the statute. In light of that change, Hendrix concluded, the reporting, registration, and record-keeping requirements for the latter group—ostensibly designed to aid revenue collection—could no longer be justified by the tax power Congress had invoked when it passed the law 92 years earlier.
That rationale for the NFA, which was enacted as part of the Internal Revenue Code, may seem puzzling, since Congress has long relied on its power to regulate interstate commerce as a general authorization to legislate. But in 1934, lawmakers did not think that power was broad enough to authorize outright bans on politically disfavored products, an idea that would not gain traction until after the Supreme Court began stretching the Commerce Clause beyond its original scope.
Instead of prohibiting the listed weapons, Congress imposed a $200 tax on their production and transfer. That levy, equivalent to roughly $5,000 in today’s money, was intended to be prohibitive.
Attorney General Homer Cummings explained the need for that indirect tactic when he testified in support of the NFA. Although Congress “of course” had “no inherent police powers to go into certain localities and deal with local crime,” he said, it could still employ “the power of taxation” to restrict weapons it deemed especially dangerous.
“If we passed a statute absolutely forbidding any human being to possess a machine gun,” Cummings noted, “you might say there is some constitutional question involved. But when you say, ‘We will tax the machine gun,’ and when you say that the absence of a license showing payment of the tax has been made indicates that a crime has occurred, you are easily within the law.”
Congress had employed a similar approach when it enacted the Harrison Narcotics Tax Act of 1914, which effectively barred nonmedical use of opiates and cocaine. It would likewise rely on “the power of taxation” to justify a de facto national ban on cannabis in 1937.
The Supreme Court blessed that pretext in 1928, upholding the Harrison Act on the grounds that it produced “substantial revenue,” consistent with its advertised purpose. But as Hendrix observed, Congress broke that slender reed when it eliminated the taxes on most NFA-regulated products.
The Trump administration argued that the NFA regulations could still be justified under the Commerce Clause. Hendrix, a Trump appointee, disagreed, saying the government “cannot employ post-hoc justifications to save a statute based on an enumerated power that Congress never invoked.”
Nowadays, of course, Congress relies on the Commerce Clause to enact a wide range of regulations that were once viewed as beyond its reach, including laws criminalizing conduct that is neither interstate nor commercial. “If Congress can regulate this under the Commerce Clause,” Justice Clarence Thomas warned in a 2005 case concerning medical marijuana grown and consumed in California, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
Hendrix’s decision serves as a welcome reminder of that fundamental principle. Yet since 1934, Congress has found a new justification to justify nearly anything it wants to do.
© Copyright 2026 by Creators Syndicate Inc.
