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Ho Ho No: Is Santa Claus Unconstitutional?

By Robyn Hagan Cain | Last updated on

It's not easy being Santa Claus. Best Buy is questioning Santa's gift-giving prowess with their holiday, "Game on, Santa" commercials, and Georgia just gave the flying reindeer special clearance to enter the state, but didn't offer Santa a waiver from state immigration laws. (Pack your passport, Santa.)

Gone are the days when children happily welcomed the jolly elf with milk and cookies or chocolate and port. Santa better watch out, because everyone wants to sue him now. Father Christmas has to worry about trespassing charges, Peeping Tom accusations -- how does he see you when you're sleeping? -- and Federal Aviation Administration violations.

As if the basic criminal obstacles weren't enough, Santa may be unconstitutional.

Think about it: Santa is clearly interfering with the stream of commerce.

A bustling team of elves -- who may or may not be unionized -- produces toys. Santa then distributes those toys to children, who would otherwise beg their parents to purchase the toys from stores that pay taxes.

Santa's operation certainly has a more significant impact on the stream of commerce than Roscoe Filburn's wheat-farming did, and the Supreme Court wouldn't condone Filburn's farming under the Commerce Clause.

Then, there's the holiday display issue.

In both of the major holiday Establishment Clause cases, Lynch v. Donnelly and Allegheny County v. Greater Pittsburgh ACLU, the Supreme Court ruled that an appearance by Santa and his friends tempered the religious over-or-undertones of a holiday decor because Santa is largely considered a secular figure.

Going forward, however, the Court might be less likely to approve a display if they find Santa away in a manger, or lighting the menorah.

Justice William Brennan argued in his dissenting opinion in Lynch that Santa's proximity to the religious elements of a holiday display should impact constitutional analysis. (The Lynch crèche was near one of the more "enticing" parts of the display for children: Santa's house.)

Considering how the Supreme Court likes to seize upon dicta, we half-expect a future Court to rule that Santa must be 20 paces away from Mary and Joseph for a crèche to survive Establishment Clause review.

Despite Santa's hypothetical legal woes, his constitutional outlook is not entirely bleak.

Congress has yet to rein in Santa's impact on the stream of commerce, probably because it would further damage the abysmal Congressional approval ratings. Without a federal law restricting Santa's gifting, St. Nick needn't sweat a Commerce Clause challenge.

Santa's also unlikely to submit an amicus brief in an Establishment Clause case this year because the Court -- much to Justice Thomas' chagrin -- seems content with jurisprudence on the issue for the moment.

Happy holidays, Santa, and congratulations on clearing another year of legal hurdles. Now, can we please get off the naughty list?

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