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tion that has no basis whatever in the Constitution.  For

nearly 60 years, Congress had virtually plenary authority;

then, finally, in the Lopez91 case, a bare majority of the

Court took a modest step toward reining in the federal

government.  But as Justice Clarence Thomas said in his

concurrence, the Court did not go far enough when it

allowed congressional regulation of activity that "substan-

tially" affects interstate commerce.

Applied to the matter at hand, it is not enough to

proclaim that labor strife substantially affects interstate

commerce.  To legitimately invoke the commerce power,

Congress must show that a labor-management dispute somehow

gave rise to a state-enforced barrier to trade.  Moreover,

any federal statutory remedy must be both necessary (i.e.,

essential) and proper (i.e., respectful of other rights)

in providing a means by which the barrier will be removed.

There has been no such showing by Congress with

respect to the NLRA.  Nor could there be.  An act that

controls virtually every aspect of labor relations cannot

be said to have as its objective the removal of trade bar-

riers.  And an act that systematically violates the rights

of association and contract is in no sense "proper" as

required under Article I, Section 8.  Accordingly, it is

fair to conclude that the federal government was not con-

stitutionally authorized to enact the NLRA, which endorses

"exclusive representation" of employees who never asked for

representation, and prohibits those employees from negoti-

ating the terms and conditions of their own employment.

That said, the NLRA is indeed the law of the land--

without this author's blessing but most assuredly with the

indulgence of the Supreme Court.92   In light of the federal

government's 60-year immersion in labor law, Congress has

an affirmative obligation to see that the powers, however

illegitimately created by that law, are not abused.

Violence accompanying the exercise of those powers must

not go unpunished, and the federal government, as promul-

gator of the law and creator of the attendant powers, is

authorized to remedy such violence under FUVA or a similar

statute.

Between the unconstitutional NLRA and the Enmons rul-

ing, there is a curious double standard, which former

attorney general Edwin Meese discussed in the Senate FUVA

hearing.  On the one hand, Congress has "thoroughly pre-

empted the field . . . [of] labor relations between pri-

vate employers and their employees."  On the other hand,

the Supreme Court has left to ineffectual "state and local