damnum absque injuria

December 8, 2005

More Balko-B.S. (But I Repeat Myself)

Filed under:   by Xrlq @ 12:47 pm

Radley “Everything I Don’t Like Is Unconstitutional” Balko is at it again, arguing that Congressional oversight of professional sports is unconstitutional. Balko writes:

Such is why Rep. Tom Davis, R-Va., once asserted in a letter to Major League Baseball that his committee not only had jurisdiction to meddle in the MLB’s drug-testing policies, it had the power to conduct an investigation “at any time, on any matter.”

It gets worse. Davis’ committee, the Government Oversight Committee, is actually charged with reigning in government excess. Separation of powers be damned.

For those who slept through high school civics, the separation of powers is the legal doctrine that divides government into three (allegedly) co-equal branches: executive, legislative and judicial. Congress is the legislative branch, the one most of us would have assumed has the power to regulate interstate commerce, and therefore, to conduct whatever investigations it wants in order to decide what to do in that arena. Is Balko arguing that the courts ought to be doing this instead, or that President Bush should be doing it all by executive order? He doesn’t say.

Balko continues with his constitutional non-expertise thusly:

Let’s be clear, here. The Constitution gives Congress no authority — zero — to interfere in the goings-on of private entities like the NFL, Major League Baseball or the NCAA.

Let’s be equally clear here, only this time, let’s also be right. The Constitution – Article I, Section 8, to be exact – gives Congress plenary authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” To argue that professional sports is not interstate commerce is every bit as preposterous as arguing that medical marijuana grown in a single state and never sold, is. Granted, the Supreme Court has, at different points in history, embraced both views. However, that doesn’t change the fact that they are ludicrously wrong. We’re stuck with the “mari-ju-wana is bad, mmkay” ruling is binding today, the “sports isn’t commerce” precedent has rightly been abandoned to the dustbin of history generations ago.

The NCAA is a bit trickier, of course, as it maintains the fiction that it is not a commercial enterprise. But all kidding aside, colleges are as commercial as anything else, and the NCAA is about as intrastate as Amtrak. Besides, most if not all of the universities whose teams participate in the NCAA receive oodles of federal money with all sorts of strings attached. If all this turns on whether or not unversity sports is “interstate commerce,” Congress has an easy, 100% constitutional alternative: amend the federal funding law to require each university to accept Congressional oversight up the wazoo or forfeit all their funding. If one major university holds out, tighten the screws further to prohibit recipient universities from participating in leagues that don’t submit to Congressional authority “voluntarily.”

None of this means, of course, that Congressional snoopdoggery of professional and allegedly collegial sports is a good idea. I lean toward the view that it is not. But it’s one thing to question to the wisdom of a dubious policy, as pundits do as a matter of course, and quite another to take the Constitution’s name in vain, as Balko does every time he encounters any government policy he doesn’t like.

Balko then proceeds to enlighten us as to what his version of the Constitution would allow government to do:

If owners are colluding to keep an athlete from attaining his fair market value, it’s a matter for the Justice Department, or for state attorneys general.

Balko refers, of course, to Article VIII the Constitution, which reserves to the executive branch the power to “regulate and prevent Collusion of the professional Sports.” Oh wait, I almost forgot, there is no Article VIII. Balko must instead be talking about federal antitrust laws such as the Sherman Act, in which Congress exercised the very powers Balko claims it doesn’t have. Apparently, in the Balkans, it’s not OK for the Legislative Branch to enact an allegedly unconstitutional statute, but once it does, it is OK for the Executive to enforce it. Separation of powers, don’t you know.

If a sport is corrupt, it’s a matter for the criminal justice system.

Not necessarily. If a sport is corrupt in violation of law, it’s a matter for the criminal justice system. If a sport is corrupt in compliance with law, then it’s up to Congress to fix the law. And if it’s not clear which, it’s a matter for Congress to investigate. Unless, of course, the Radleys of the world would rather that Congress not investigate, and just pass laws blindly instead.

If athletes are cheating, let the sport’s internal mechanisms sort things out. If the sport fails, fans will stop patronizing a rigged game.

Ever heard of professional wrestling?! And besides, what fan in his right mind would boycott a baseball game just because they allowed the best players on the field rather than banning them for using dangerous but performance-enhancing stereoids? No one – well, hardly anyone – avoids buying albums or attending concerts of their favorite rock stars solely because they suspect that the artists use illicit drugs, cheat on their wives, or do any other number of bad things. What on earth makes Balko believe his precious market would perform differently for sports?

I could read the rest of Radley’s screed, but that would be 15 seconds of my life that I’d never get back.

6 Responses to “More Balko-B.S. (But I Repeat Myself)”

  1. TM Lutas Says:

    Oh no you don’t! You won’t get away with palming Radley Balko on the Balkans. Have you no shame sir? Have you no decency?

    Perhaps you meant Balkons? That’s the only way I’ll ever forgive you.

    >B-)

  2. Xrlq Says:

    What are Balkons? German balconies?

  3. triticale Says:

    I am perfectly willing to accept Major League Baseball’s claim not to be a business. This is, I trust, reflected in the non-deductability of any expenses related to it.

  4. Tom Trigger Says:

    “To argue that professional sports is not interstate commerce is every bit as preposterous as arguing that medical marijuana grown in a single state and never sold, is.”

    Not so fast. The fact that a business or industry is conducted in multiple states does not make it “interstate commerce” according to any natural reading of that phrase — or more importantly, as the founders intended. If the feds wanted to pass a law saying that baseball teams travelling from state to state had to travel by bus rather than plane, that would be a regulation of interstate commerce. But if they decided that the distance from home to first should be shortened to 80 feet, the fact that there are MLB franchises in multiple states would not make that a constitutional exercise of Congress’ commerce power.

    The Commerce Clause is not — except in the fevered, power-mad dreams of liberals — a general grant of comprehensive regulatory power over everything that happens in two or more states.

  5. Xrlq Says:

    Games between teams from a single state are the exception, not the rule. In any event, Balko can’t have it both ways. If professional sports aren’t interstate commerce, the Sherman Act can’t apply to them, and therefore, the teams can collude all they want and the Justice Department shouldn’t have a f’n thing to say about it. State attorneys general might, provided they only enforce state laws rather than any federal law Balko claims Congress had no power to enact in the first place, but the result would almost certainly be an impossible patchwork of state-specific rules that would make nationwide sports leagues very difficult, if not impossible, to run. Maybe you think that’s what the framers of the Constitution wanted. I don’t; it strikes me as precisely the sort of crap the Commerce Clause was intended to prevent.

  6. Patterico’s Pontifications » Why Would I Say Radley Balko Isn’t Always Accurate? Because He Isn’t. Says:

    [...] Xrlq has caught Balko on other distortions (see here and here). [...]

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