Commerce Clause

11 Key excerpts on "Commerce Clause"

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  Living Originalism

  • Jack M. Balkin(Author)
  • 2011(Publication Date)
  • Belknap Press

    (Publisher)

  The argument for such an un- Commerce 159 enumerated power seems entirely sensible, but it also flies in the face of the claim that the federal government is a government of limited and enumerated powers and that the framers exercised considerable care in their choice of which powers to give the new federal government. Be-cause foreign affairs were so crucial to the framers’ reasons for forming a new Constitution, it seems very strange that they would have forgot-ten to give the federal government this power. But they didn’t forget. One doesn’t need to postulate a general unenu-merated power to conduct foreign affairs if one reads the Commerce Clause according to its original meaning of “intercourse.” The Commerce Clause, like the powers to conduct war, make treaties, and define and punish violations of international law, is already in the text of the Con-stitution, and together with these other powers it gives the federal gov-ernment the ability to regulate all kinds of affairs and interactions with the outside world. Focusing on Congress’s powers to regulate foreign commerce also helps settle whether the word “regulate”—i.e., prescribe rules for commerce— includes the power to prohibit. 93 Surely if Congress has the power to keep both goods and people out of the country under the foreign Commerce Clause, “regulation” must include prohibition. Even under the trade the-ory, the power to regulate must include the power to prohibit. The point of the new federal government was to promote American trade with for-eign nations. It could not do this unless it could credibly threaten to block or embargo goods coming from foreign countries in order to force them to open up their borders to American goods. I have argued that the interaction theory makes the most sense of the meaning of “commerce” because it makes the most sense of Congress’s powers to regulate foreign and Indian commerce. It is true that Congress’s powers to regulate domestic commerce are more constrained.

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  The Least Dangerous Branch

  • Alexander M. Bickel(Author)
  • 1986(Publication Date)
  • Yale University Press

    (Publisher)

  29 Commerce Clause decisions are considered constitutional. For they purport to be and are in fact binding on the states. Yet, al-though this was for a time in doubt, they are not binding on Con-gress. Every decision forbidding this or that state regulatory or taxing measure in the name of the Commerce Clause is subject to congressional reprise. Congress may permit the states to do what the Court has forbidden. More significantly, Congress is always free to enact nationally an economic regulation which the Court has held to be foreclosed to the states under the Commerce Clause. Hence, theoretically in any event, Commerce Clause decisions amount only to allocations of power among the political institu-tions, distributions from local to national ones; these allocations are, moreover, as Professor Ernest J. Brown has written, tentative and subject to reallocation by Congress. 30 In practice, however, one is less justified here than elsewhere in treating the congres-sional reprise as an ordinary possibility. Instances of it exist, to be sure, 31 and particularly by way of the enactment of national regulation. All economic measures that Congress has enacted may be so regarded, and some are immediately traceable to Commerce Clause adjudications. 32 But specific congressional replies, permit-ting the states to do what the Court has forbidden, are relatively rare, essentially for reasons I have mentioned, which make the Court a more suitable body than Congress to assume the primary responsibility of policing the integrity of the national economy. Great numbers and a great variety of state measures are involved. Each generally has a quite narrow impact in itself and is unlikely to rouse national interest.

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  The Decline of the Constitutional Government in the United States

  A "Declaration of True Meaning" Procedure Could Help the People to Restore It

  • Roland Adickes(Author)
  • 2022(Publication Date)
  • Page Publishing, Inc.

    (Publisher)

  immense mass of legislation could well be used to describe the reality of limitless federal legislation overlaying and superseding the States’ legislation in the exercise of their retained powers. This lava flow of federal law is claimed to be authorized by the Constitution’s Taxing and Spending Clause and by the regulate Commerce Clause, but it has almost completely buried the federal structure envisioned by the Founders, and it has done so without the consent of the constitutional majority of the people required by Article V of the Constitution.

  The limits of federal power under the Commerce Clause delineated by Justice Marshall in Gibbons have been nearly extinguished by the theory that Congress may not only “regulate Commerce with foreign Nations and among the several States” but may also regulate “economic activity [that] substantially affects interstate commerce.”95

  As Justice Thomas has repeatedly pointed out, most recently in his dissent in National Federation of Independent Business , this theory is inconsistent with the original understanding of Congress’s power under the Commerce Clause.

  The original understanding is found in the words of the Constitution and in Chief Justice Marshall’s opinion in Gibbons v. Ogden (1824).96

  Their concept of commerce was what it still is in today’s plain English.

  Today, the word commerce , in plain English, still means

  an interchange of goods or commodities, especially on a large scale between different countries (foreign commerce) or between different parts of the same country (domestic commerce); trade; business.97

  The buying and selling of goods, especially on a large scale, as between cities or nations. See synonyms at business.98

  This remains the basic meaning of the word commerce today, and as Justice Thomas showed in his concurring opinion in United States v. Lopez ,99 the Founders used the word commerce with this meaning in their debates, as well as ultimately in Article I, Section 8, clause 3 of the Constitution.

  Contrary to the assertions in some recent Supreme Court opinions, Chief Justice Marshall, in Gibbons v. Ogden 100

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  American Constitutional Law, Volume I

  The Structure of Government

  • Ralph A. Rossum, G. Alan Tarr, Vincent Phillip Munoz, Ralph Rossum(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman AntiTrust Act in 1890. Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Only the third category is implicated in the case at hand.

  Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. Wickard v. Filburn (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. In this vein, we have reiterated that when “a general regulatory statute bears a substantial relation to commerce, the de minimis

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  Illustrated Great Decisions of the Supreme Court

  • Tony Mauro(Author)
  • 2005(Publication Date)
  • CQ Press

    (Publisher)

  lthough Congress today seems to involve itself in all issues facing the United States—from steroid use by athletes to telemarketing—the Constitution spells out a limited list of its duties. Whenever Congress passes a law, in theory, it must connect the legislation to one of these “enumerated powers.” The power that is invoked to justify a broad range of legislation is contained in the so-called Commerce Clause, namely, the power to “regulate commerce with foreign nations, and among the several states.” Since the early days of the nation, how the Supreme Court has interpreted that power—narrowly or broadly—has played a key role in determining how strong the national government is. COMMERCE POWER A 43 Gibbons v. Ogden (1824) 45 Muller v. Oregon (1908) 47 Standard Oil Co. of New Jersey v. United States (1911) 49 Schechter Poultry Corp. v. United States (1935) 52 National Labor Relations Board v. Jones and Laughlin Steel Corp. (1937) 54 Heart of Atlanta Motel v. United States (1964) 57 United States v. Lopez (1995) 59 Gonzales v. Raich (2005) Other related cases mentioned in the Commerce Power section Civil Rights Cases (1883) (see p. 234) United States v. E.C. Knight Co. (1895) Northern Securities Co. v. United States (1904) Swift and Co. v. United States (1905) Lochner v. New York (1905) (see p. 219) West Coast Hotel v. Parrish (1937) Wickard v. Filburn (1942) Reed v. Reed (1971) Frontiero v. Richardson (1973) Printz v. United States (1997) Clinton v. New York (1998) United States v. Morrison (2000) 42 COMMERCE POWER DECISION Congress has broad powers under Article I, Section 8, of the Constitution, which says, “Congress shall have power to regu-late commerce with foreign nations, and among the several States, and with the Indian tribes.” The Court interpreted this grant to cover all conceivable forms of commerce, including navigation, except if the commerce takes place entirely within a state.

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  Understanding Clarence Thomas

  The Jurisprudence of Constitutional Restoration

  • Ralph A. Rossum(Author)
  • 2014(Publication Date)
  • University Press of Kansas

    (Publisher)

  31

  Thomas then focused on “the text, structure, and history of the Commerce Clause.”32 He began by turning to dictionaries of the era and found that “at the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.”33 He cited a variety of Federalist and Anti-Federalist sources to demonstrate that “during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably.”34 He then quoted Hamilton from several numbers of The Federalist and delegates from the Massachusetts and New York Ratifying Conventions to support his argument that “the term ‘commerce’ was used in contradistinction to productive activities such as manufacturing and agriculture.”35

  Earlier in his opinion, Thomas had indicated that a further reconsideration of the Court’s substantial effects test should be deferred to some “appropriate case” in the future,36 but he nonetheless felt compelled to observe that

  the Commerce Clause does not state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” clause had that been their objective.37

  Thomas then introduced one of the key arguments in his opinion. The Court’s substantial effects test combined with its reading of the Necessary and Proper Clause had rendered “wholly superfluous” many of “Congress’ other enumerated powers under Article I, § 8.” He wrote:

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  American Constitutional Law

  Introductory Essays and Selected Cases

  • Donald Grier Stephenson Jr., Alpheus Thomas Mason(Authors)
  • 2021(Publication Date)
  • Taylor & Francis

    (Publisher)

  We start with first principles. The Constitution creates a Federal Government of enumerated powers… .

  [NLRB v.] Jones & Laughlin Steel, [United States v.] Darby, and Wickard [v. Filburn] ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.

  But even these modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits… .

  Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce… . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities… . Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, that is, those activities that substantially affect interstate commerce.

  Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress’ power to regulate it under the Commerce Clause… . We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce.

  We now turn to consider the power of Congress, in the light of this framework, to enact § 922(q). The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if § 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce… .

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  Charles Evans Hughes and the Supreme Court

  • Samuel Hendel(Author)
  • 2019(Publication Date)
  • Columbia University Press

    (Publisher)

  The completely internal commerce of a state, then, may be considered as reserved for the state itself. For many years, it was the negative implications of this broad definition of federal interstate commerce power, that is to say, the limitations thereby impliedly imposed upon the states, rather than the affirmative nature of the grant, which preoccupied the Court. This was necessarily the case since Congress, until 1887, made no substantial effort to use its commerce power affirmatively in the regulation of the national economy. The practical result was that the doctrine of exclusive federal power, so long as it held sway, was not a means of enhancing the exercise of federal power but a means of defeating any regulation. Many interests which were the strong-est proponents of exclusive federal power, under the interstate com-merce clause, were to become, when such power threatened their interests, the staunchest opponents of any federal power, under the guise of states' rights. When that situation developed, however, they were to derive little comfort from some of the general expres-sions of John Marshall which readily yielded to a broad view of fed-eral prerogative under the interstate Commerce Clause. 4 8 COMMERCE: NATIONAL AND STATE POWER The first significant exercise by Congress of its power under the Commerce Clause was its enactment of the Interstate Commerce Act of 1887. A series of Congressional laws followed, but these, until 1903, were almost exclusively confined to the regulation of intoxicat-ing liquors, common carriers and trusts. 3 In the twentieth century Congress continued its regulations in these areas and began to extend its power to govern many other phases of the economy. Despite the assertions of John Marshall respecting the plenary nature of this power, these enactments were frequently challenged as in excess of the interstate commerce power of Congress.

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  The Upside-Down Constitution

  • Michael S. Greve(Author)
  • 2012(Publication Date)
  • Harvard University Press

    (Publisher)

  Under the conditions of the nineteenth century, how-ever, those turned out to be the same things. The Constitution, both in its specific provisions and its general structure, provided the raw materials for a competitive federalism, and it established a federal judiciary with the legal authority and the institutional incentives to give force and meaning to those provisions and that structure. Congress, meanwhile and for the duration of a century, made few meaningful contributions to the crucial integrative task of regulating interstate commerce. The field was domi-nated by the Supreme Court, and that meant integration had to proceed on competitive terms or not at all. The dormant Commerce Clause is one manifestation of that dynamic. Its purpose, I have argued, was to prevent states from accomplishing through subterfuge and evasion ends that are prohibited by the Constitution. The logic is not altogether inescapable. One could contend, for example, that it rests on an exaggerated fear of the states’ centrifugal tendencies. States, like all commercial republics (except perhaps more so), “will never be dis-posed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.” 70 That cheerful expectation was widely held at the time of the Founding, and it reverberates today in neoliberal trade and federalism theories. The Constitution, in contrast, rests on the contention that theories of this sort are too unreliable to serve “as a practical maxim for the direction of our political conduct.” 71 In a world without politics, federalism is an assignment or coordination problem. In the real world, it is first and foremost a control problem. The dormant Commerce Clause was a judicial answer to that problem. We shall see in the next chapter that it was an indispensable answer: no other doctrine could do the job.

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  The Constitution and Economic Regulation

  Commerce Clause and the Fourteenth Amendment

  • Michael Conant(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  5 Commerce Clause: Federalism and the Regulation of State Transactions

           

  The extent to which the national commerce power is to apply to transactions of states and their municipalities raises particular issues of federalism and intergovernmental immunities. The plenary power in Congress to regulate commerce among the several states was adopted in a historical context of regulating transactions between private persons or firms or any of them.1 A corollary is that the structure of federalism creates a presumption against national regulation of transactions of the states and their agencies. But the presumption should be rebuttable when states act like proprietors. It will be shown that state proprietary transactions are so like private transactions that nondiscriminatory regulation of these transactions in order to remedy market failures fits logically and functionally into efficient national markets. In contrast, state purchase of goods and services to be used in executing internal governmental functions do not require national regulation and may lose efficiency as a result of such regulation.

  Since the monopoly power of the national government to tax and to regulate markets far exceeds the power in any state, there is a great potential for national law to supersede state law entirely. Nationally organized business associations, farmers’ groups, and trade unions, may find it more feasible and less costly to “buy” legislation from the Congress than from fifty state legislatures in their efforts to gain or maintain monopoly profits.2 The issue here is the extent of state immunities when such statutes are extended to control state transactions. The extreme case would be a federal statute regulating the wages that states may pay their governors, cabinet members, legislators, and judges.

  This chapter centers on the national commerce power and possible state immunities as illustrated by Garcia v. San Antonio Metro. Transit Auth.,3 which overruled National League of Cities v. Usety.4

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  Litigating Federalism

  The States Before the U.S. Supreme Court

  • Bill Swinford, Eric N. Waltenburg(Authors)
  • 1999(Publication Date)
  • Praeger

    (Publisher)

  Ogden (9 Wheat. 1 [1824]). That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. Congress, following its own conception of public policy concerning restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use... .Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause [cites omitted]. (312 U.S. 100, 114-15) Perhaps even more detrimental to state interests in the long-term was the Court's response to the assertion that the Tenth Amendment presented a "constitutional prohibition" on a federal exercise of power of this type: Our conclusion is unaffected by the Tenth Amendment which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than a declaration of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. (312 U.S. 100, 123-24) 16 Litigating Federalism The next twenty years saw repeated federal forays into new realms of economic regulation that were regularly supported by the Court's new nationalist jurispru- dence. 28 The Court required only that the regulation be rational — a standard that was easy to meet.

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