This essay first appeared in the June 10, 2026 Epoch Times.
The Constitution limits the federal government to certain listed (“enumerated”) powers. So you might wonder how it can dictate which toilets we use in our homes and which light bulbs we buy for our bedrooms.
The Constitution hasn’t changed, but the Supreme Court did. During the 1940s, the justices, under extreme political pressure, stopped enforcing the Constitution’s economic limitations on Congress. They did so by transmogrifying Congress’s authority to regulate “Commerce … among the several States” into power to regulate the entire national economy.
I explained the process in my Epoch Times series, “How the Supreme Court Rewrote the Constitution.”
Not surprisingly, once the federal government was freed of constitutional restraints, politicians and bureaucrats began to extend their influence into every aspect of our lives.
During the 1990s, the Supreme Court, under the leadership of Chief Justice William Rehnquist, made a few feeble efforts to curb Congress’s pretensions. However, since the ascension of Chief Justice John Roberts, the court has abandoned even those minor efforts. (This is one of many reasons the claim that we have a “conservative Supreme Court” is clearly false.)
But on May 28, the court decided a case arising in Colorado that has me wondering: Are some justices thinking it is finally time to enforce at least some of the Constitution’s limits on congressional overreach?
Flowers Foods v. Brock
On its face, the case of Flowers Foods v. Brock doesn’t seem to be about the Constitution at all. It was a case of statutory interpretation. This means the justices had to interpret a congressional law, not the Constitution.
The law was the Federal Arbitration Act. It requires courts to enforce contracts under which people promise, in the event of a dispute, to submit their case to a private arbitrator rather than to sue in court. But the Federal Arbitration Act has an exception for employment contracts for workers “engaged in … interstate commerce.” If you are “engaged in interstate commerce,” the other party can’t force you to arbitrate your employment contract. In the event of a dispute, you remain free to demand a hearing before a judge.
Flowers Foods is the company that makes Wonder Bread and other famous products. Angelo Brock was one of the company’s franchisees. When a dispute arose between them, Flowers Foods wanted to send the matter to arbitration.
Brock’s response was to the general effect of “Under the Federal Arbitration Act, I’m ‘engaged in interstate commerce.’ So you can’t force me to arbitrate. See you in court!”
The issue for the Supreme Court was whether Brock really was “engaged in interstate commerce.”
Flowers Foods is certainly engaged in interstate commerce: It sends its products all over the country. But Brock’s job was only to pick up Wonder Bread and other products that Flowers Foods sent into Colorado, and then deliver them to Colorado retail stores. Thus, when delivering products for Flower Foods, Brock never left the state.
Nonetheless, the trial court ruled that Brock was “engaged in interstate commerce” because he was a link in a chain of commerce that extended across state lines. The Court of Appeals unanimously affirmed the trial judge. And the Supreme Court unanimously affirmed the Court of Appeals.
The ‘Current of Commerce’
Now, here is a critical fact: To conclude that Brock was “engaged in interstate commerce,” you don’t have to rely on the erroneous cases of the 1940s. Even under a much older interpretation, Brock was engaged in interstate commerce.
In 1905, for example, the Supreme Court decided Swift & Co. v. United States. In that case, the justices considered whether Congress could use its constitutional power to regulate interstate commerce to govern a cattle stockyard. The stockyard received cattle from some states and held them for sale to buyers from other states. The court wrote:
“When cattle are sent for sale from [one] State, with the expectation that they will end their transit [in] another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyard, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States ….”
The court therefore concluded that the stockyard was engaged in interstate commerce, thereby justifying congressional regulation.
In 1922, in Stafford v. Wallace, the court ruled the same way—stating that ‘‘stockyards are but a throat through which the current [of commerce] flows ….”
Although these were constitutional rather than statutory cases, the principle is the same: Although Brock never left Colorado, he was part of the current by which interstate commerce flows.
Why Did SCOTUS Take the Flowers Foods Case?
In Flower Foods v. Brock, the trial judge decided that Brock was engaged in interstate commerce. The court of appeals unanimously affirmed. Its decision was supported by precedents from other courts of appeals, except for one that was unclear. And the Supreme Court unanimously affirmed the lower court rulings.
In other words, this was an easy case.
But the Supreme Court generally doesn’t take easy cases. It usually takes cases that involve difficult issues where the lower court judges reach different conclusions, or where different federal tribunals have reached very different results on the same kinds of facts.
So why didn’t SCOTUS simply refuse to review the case and let the court of appeals’ decision stand?
I don’t know. But there is an intriguing possibility.
Sometimes, when a court is preparing to limit the scope of a rule, it helps to begin by deciding a case where the rule will NOT change. That way, when the court finally makes the change, it can better defend its decision.
By way of illustration: Suppose a court announces a rule in Case A. Next, it over-extends the rule to Case B. It later recognizes that the Case B over-extension was a mistake and needs to be corrected.
Then another dispute arises, which we’ll call “Case C.” The court decides Case C based on a proper application of the original Case A rule.
Finally, Case D comes up. It looks a lot like Case B. But the court recognizes that its ruling in Case B was a mistake, and wants to correct it. So it issues an opinion with language like this:
“Case A is a good example of a proper application of the rule. And we reaffirmed this in Case C. But Case B was an incorrect deviation. So it is overruled.”
In this illustration, the correct Commerce Power decisions of 1905 and 1922 represent Case A. The incorrect decisions of the 1940s represent Case B. Flower Foods v. Brock serves as Case C. And Case D has not come along yet. But when it does, the court could use Flower Foods as a way of showing what interstate commerce means—and what it doesn’t.
Just to be clear: I don’t think the court’s three liberals (Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) are thinking this way. Nor, I believe, is the Chief Justice, who has been extraordinarily deferential to congressional pretensions. But it is possible that some or all of the remaining five may be.
It is long past time for the court to reassert some constitutional control over a dysfunctional government’s infinite appetite for power. Could this be the beginning of the process?
We’ll see.
