I’m always impressed by the variety of items for sale on Ebay. I’ve seen air guitars, chewing gum used by Madonna and even a ghost being sold by a woman who would do anything to convince her son that there weren’t monsters in his closet. One thing I haven’t seen, however, is a sex offender for sale. Yet, later this term, the Supreme Court will hear oral arguments about whether Congress can regulate the commercial distribution of sex offenders.

You aren’t familiar with this growing domestic market? Well, admittedly, my articulation is not the precise question that the Justices granted certiorari on. In United States v. Comstock, the Court will consider whether the Commerce Clause gives the federal government the power to indefinitely confine sex offenders after their release from prison. Before Comstock reached the Supreme Court, the Fourth Circuit struck down the commitment provision as an unconstitutional expansion of Congress’s power under the Commerce Clause. Last May, the Eighth Circuit upheld the provision, creating a circuit split and prompting the Supreme Court to resolve the dispute.

My guess is that most people outside of academic legal circles will find it inconceivable that the Commerce Clause, which allows Congress “to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes,” also creates the broad power to determine the treatment of sex offenders after their release from prison. It reminds me of an old adage: “It takes a scholar to say something that stupid.”

So how did we get here? Like many areas of constitutional law, the Commerce Clause has had a tumultuous history. For more than 100 years after its enactment, most controversies focused on the “Dormant Commerce Clause,” the implied restriction on states from enacting legislation that impeded interstate commerce. Then, during the early 20th century, as the power of the federal government soared to previously unimaginable heights, the Court’s interpretation of the Commerce Clause became decidedly more liberal. In a few groundbreaking cases, the Supreme Court determined that the Clause allows Congress to regulate any activity that “substantially affects” interstate commerce, regardless of whether the activity occurred entirely intrastate and whether the impact was direct or indirect. Not surprisingly, these decisions provided the necessary legal foundation for the explosion of federal legislation that followed.

It wasn’t until the 1990s, in the cases of United States v. Lopez and United States v. Morrison, that the Supreme Court began defining the outer limits of Congress’s commerce power. In Lopez, the Court struck down the Gun-Free School Zones Act, which made it a federal crime to carry a firearm near a school. Five years later, in Morrison, the Court invalidated a provision of the Violence Against Women Act that created a federal civil remedy for gender-motivated crimes of violence. In both cases, the government argued that the regulations would decrease crime, that crime imposes a myriad of costs on society, and that these costs extend across state borders, thus justifying the use of Congress’s commerce power. In two 5-4 decisions, the Court rejected the government’s attempt to “pile inference upon inference” to justify its position.

In Comstock, the Supreme Court will revisit its Commerce Clause jurisprudence, and the discussion will likely focus on whether to maintain these outer boundaries or eliminate them entirely. If the Supreme Court decides that the Commerce Clause allows Congress to regulate activities that are clearly not economic in nature, that occur entirely intrastate, and that have only the most attenuated relation to interstate commerce, it would lift the last restriction on federal authority. To quote from an earlier Supreme Court opinion, this is a case that involves “effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.”

The latter is not hyperbole. In his Morrison dissent, Justice Breyer did not reject this argument as alarmist rhetoric but instead embraced it as a “practical reality” of the modern world. I will refrain from discussing the virtues of a federalist system and the glaring problems with abandoning such a system based on an undeniably strained reading of the Constitution. Despite how close the Morrison and Lopez decisions were, I find it hard to believe that the Supreme Court would take the radical step described above. In all likelihood, the Court will strike down the provision or, if it heads in the opposite direction, it will find some contrived way to narrowly confine its decision to the facts of this case.

Sadly, it will almost certainly not consider a more appropriate alternative: eliminating the “substantial effects” test once and for all. As Justice Thomas wrote in his Morrison concurrence, this “rootless and malleable standard ... has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”

It is also the reason why our highest court must now decide whether Congress’s commerce power allows it to regulate the post-release treatment of sex offenders, as if they were a commodity being shipped interstate. If the Court wishes to avoid such odd questions in the future, it should make clear that Congress’s commerce power applies only to commerce. Or, if it truly believes that practical realities of the modern world make it necessary for Congress to have such an all-encompassing power, it should recommend the adoption of a constitutional amendment, rather than fundamentally altering a core feature of our democracy through piecemeal judicial review.

Greg Demers is a third-year law student at Cornell. Barely Legal, a column featuring a rotating cast of law students, appears alternate Fridays this semester. He may be reached at gld34@cornell.edu.