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Interpreting the Commerce Clause: Federalism, Commerce, and State Sovereignty, Study notes of Law

University of Florida (UF)Law

The interpretation of the commerce clause in the us constitution, focusing on the role of federalism, the definition of commerce, and the limits of congress's power. Various court cases, including gibbons v. Ogden, carter v. Carter coal, and us v. Darby, and discusses the concepts of dual federalism, the stream of commerce, and the substantial effect test.

Typology: Study notes

2011/2012

Uploaded on 05/04/2012

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Con$Law$Outline$–$Professor$Wright$
$ $ us.docsity.com$
Chapter(2:(The(Federal(Legislative(Power(
$
(A)(Introduction:(Congress(and(the(States(
$
A. Congress$may$act$only$if$there$is$express(or(implied$authority$to$act$in$the$Const.$
B. Questions(to(ask(when(evaluating(constitutionality(of(an(act(of(Congress:(
i. What$is$the$scope$of$congressional$authority?$(McCulloch(v.(Maryland)$
ii. What$is$Congress’s$authority$under$specific$constitutional$provisions?$
iii. Does$state$sovereignty$limit$congressional$power?$
iv. What$limits,$if$any,$exist$on$Congress’s$ability$to$delegate$legislative$power?$
C. Necessary(and(Proper(Clause:(Congress$has$the$power$to$make$all$laws$‘necessary$
and$proper’$for$carrying$out$its$enumerated$powers$
i. E.g.)$if$congress$is$seeking$an$objective$that$falls$within$specifically$enumerated$
powers,$may$use$any$means$that$is$rationally(related(to(the(objective$and$not(
specifically(forbidden(by(Const.$
D. Can’t(Violate(other(Powers:$even$when$Congressional$action$appears$to$fall$within$
a$specific$grant$of$power,$the$federal$action$may$not$violate$some(other(specific$
constitutional$guaranty$
i. It$must$fall$within(some(specific(grant(of(power(under(the(Constitution;$and$$
ii. It$must$not(violate(any(specific(constitutional(provision$
E. Enumerated(Powers:$
i. lay$and$collect$taxes$
ii. provide$a$defense$for$the$country$
iii. borrow$money$on$the$credit$of$the$US$
iv. regulate$commerce$w/$foreign$nations,$and$interstate$commerce$among$the$
several$states$
v. regulate$immigration$and$bankruptcy$
vi. establish$post$offices$
vii. control$the$issuance$of$patens$and$copyrights$
viii. declare$war,$
ix. pass$laws$need$to$govern$DC$and$fed$military$enclaves$
x. make$all$laws$necessary$and$proper$for$carrying$into$execution$the$foregoing$
powers,$and$all$other$powers$vested$in$this$Constitution$in$the$government$of$
the$US.$
xi. Power$to$regulate$foreign$affairs$is$implied$by$the$nature$of$the$Union,$and$by$
the$impracticability$of$having$each$state$conduct$its$own$foreign$affairs.$
F. Implied(Powers$
McCulloch(v.(Maryland((p.101)(p.236)(whether(Maryland(could(collect(tax(from(the(US(
Bank;(State(governments(were(angry(at(the(bank(for(many(reasons
→
adopted(taxes(on(it(
i. Implied(Authority(and(constitutionality(to(create(the(Bank(
a. Historically:$the$first$Congress$enacted$the$bank$(prescription)$
b. States$don’t$retain$ultimate$sovereignty$because$the(people(ratified(the(
constitution$
pf3
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Chapter 2: The Federal Legislative Power

(A) Introduction: Congress and the States

A. Congress may act only if there is express or implied authority to act in the Const. B. Questions to ask when evaluating constitutionality of an act of Congress: i. What is the scope of congressional authority? ( McCulloch v. Maryland ) ii. What is Congress’s authority under specific constitutional provisions? iii. Does state sovereignty limit congressional power? iv. What limits, if any, exist on Congress’s ability to delegate legislative power? C. Necessary and Proper Clause: Congress has the power to make all laws ‘necessary and proper’ for carrying out its enumerated powers i. E. g.) if congress is seeking an objective that falls within specifically enumerated powers, may use any means that is rationally related to the objective and not specifically forbidden by Const. D. Can’t Violate other Powers: even when Congressional action appears to fall within a specific grant of power, the federal action may not violate some other specific constitutional guaranty i. It must fall within some specific grant of power under the Constitution; and ii. It must not violate any specific constitutional provision E. Enumerated Powers: i. lay and collect taxes ii. provide a defense for the country iii. borrow money on the credit of the US iv. regulate commerce w/ foreign nations, and interstate commerce among the several states v. regulate immigration and bankruptcy vi. establish post offices vii. control the issuance of patens and copyrights viii. declare war, ix. pass laws need to govern DC and fed military enclaves x. make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the US. xi. Power to regulate foreign affairs is implied by the nature of the Union, and by the impracticability of having each state conduct its own foreign affairs. F. Implied Powers McCulloch v. Maryland (p.101)(p.236) whether Maryland could collect tax from the US Bank; State governments were angry at the bank for many reasons → adopted taxes on it i. Implied Authority and constitutionality to create the Bank a. Historically : the first Congress enacted the bank (prescription) b. States don’t retain ultimate sovereignty because the people ratified the constitution

1. Compact Federalism: sees states as sovereign because they ratified the constitution 2. People are sovereign, not the states c. Authority to create the bank was through implied powers

  1. Congress isn’t limited only to those acts specified in the Constitution
  2. Congress may choose any means not prohibited by the Const. to carry out its lawful authority d. Meaning of the necessary and proper clause
  3. First interpretation (present case) is that Congress may choose any means to carry out its express authority; necessary means useful/desirable and not indispensible/essential
  4. Second interpretation is that the clause is a limit on Congress’s power and allows congress to adopt laws only truly necessary (indispensible) G. Constitutionality of Maryland’s Tax i. Federal law has to be supreme (otherwise states indirectly tax other states) ii. There must be implied prohibitions to protect federal supremacy H. What role should concern over protecting States have in defining congress’s powers? (10th^ amendment argument used later) i. Those who oppose judicial protection of states as a limit argue that national legislation is needed to deal with national problems ii. Others argue for judicial use of federalism as a constraint on Congress’s power a. Lessens the chance for federal tyranny , enhances democratic rule through government closer to the people, and uses states as laboratories

(B) The Commerce Power

A. Article I, § 8: “The congress shall have the power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” B. Three Questions i. What is ‘commerce’? ii. What does ‘among the several states’ mean? iii. Does Tenth Amendment limit Congress?

1. The Initial Era: Gibbons v. Ogden Defines the Commerce Power

Gibbons v. Ogden (p.113)(p.243) ( navigation ) NY gave Δ monopoly on ferry transportation; Π started competing service and violated the rights; Fed law preempted NY law → NY monopoly was an impermissible restriction of interstate commerce (ISC)

1824: Gibbons expansive view

1890s-­‐1937: very narrow conservative justices

1937-­‐1995: expansive/ unlimited Robert's Switch

1995 and on: Lopez/Morrison

Carter v. Carter Coal (1936)(p.118)(p.249) declared unconstitutional Bituminous Coal act; law contained detailed findings about relationship with commerce and said production of coal directly affected interstate commerce; wages ≠ commerce v. Certain price regulation probably ok, but here the law relates to labor laws which are a local activity a. Counter argument is that if you allow child labor, directly affects cheaper price vi. The decision to narrowly define commerce was to protect states

What does ‘Among the States’ mean?

A. Defining among the states is difficult; some courts have defined it as direct/indirect effects ; others have defined it based on impact to interstate commerce Shreveport Rate Cases (1914)(p.120)(p.250) upheld the ability of the ICC to set intrastate railroad rates because transactions were so related that one involves control of other state i. Court allows regulation of intrastate transactions to protect and foster interstate commerce when interstate commerce is injured ii. Court lists: substantial relation to interstate commerce , efficiency of interstate service , and maintenance of conditions to keep commerce on fair terms iii. Emergence of the substantial economic effect test A.L.A. Schechter Poultry v. US (p.122; 250) Court declared federal law about sick chickens/wages etc. unconstitutional because insufficiently direct relationship to ISC iv. The flow of poultry may be regulated, but the law attempted to regulate the operation of the business →not direct effect on interstate commerce v. Flow of commodities into a state ≠ continuation after property has arrived ( rejects stream of commerce) ; goods have come to stop→law regulates business operation = local activity B. Stream of Commerce – when regulated part is in the “current of commerce among the States”(not consistently applied); regulated activity must be a ‘stop’ on the stream to fall within regulable area C. General idea: court interpreted ‘among the states’ as requiring direct effect on ISC

Does 10th^ amendment limit congressional powers? (State sovereignty)

A. Court held that even if activity was deemed ‘commerce’ and ‘among the states’, it was unregulable if it intruded into the zone of activities ‘reserved for the state’ Hammer v. Dagenhart (1918)(p.125; 253) fed. law prohibited shipment of goods from child labor areas; law only regulated goods in interstate production ; but production ≠ regulable i. Expressly overruled by US v. Darby in 1941 ii. Regulating amount worked (not commerce) is a police power that should have been left to the states; regulation should be limited to harmful, etc. goods alone iii. Court expressly rejected use of federal legislation to prevent unfair competition

iv. Court believed the consequences of allowing this regulation→all freedom of commerce will be at an end and power of States over local powers will stop v. Holmes Dissent: (becomes significant opinion) so long as the congressional regulation falls within power specifically given to congress, the fact that it has a collateral effect upon local activities otherwise left to state control doesn’t render the statute unconstitutional Champion v. Ames (1903)(p.128; 253) federal law was upheld that prohibited the interstate shipment of lottery tickets; sought to stop intrastate activity of gambling in lotteries vi. Court found that power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce vii. Without regulation, one state may impose morals on another B. The two cases may be distinguished on principle (probably not) or more likely the Court’s willingness to defer to moral laws than economic regulations i. No clear zone of activities reserved to the states; clear belief in dual sovereignty

3. 1937 – 1990s: Broad Federal Commerce Power

A. Political pressures developed to change from other arbitrary laws of the past B. Three Key Decisions Changing the Commerce Clause Doctrine NLRB v. Jones & Laughlin (1937)(p.131; 256) constitutional challenge to NLRA that created rights for employees bargaining/union etc power; J&L are huge company with lots of IC i. Seems to be major departure because company is clearly interstate commerce ii. Major departure: production is not determinative of intrastate activity a. Regulation may be enacted to protect interstate commerce no matter what the source of the dangers which threaten it iii. Close and Substantial Relationship Test : if intrastate activities have such a close and substantial relationship to interstate commerce that their control is essential or appropriate to protect commerce from burdens and obstructions, Congress cannot be denied power to control US v. Darby (1941)(p.134; 257) act prohibited shipment of goods from manufacturers not prescribing to minimum wage; complete departing from pre-­‐1937 cases i. Expressly overruled Hammer and rejected 10th^ amend limits to Congress ii. The 10th^ amend states a ‘ truism’ ; law is constitutional as long as reasonably adapted to the permitted end Wickard v. Filburn (1942)(p.134; 258) quotas set for wheat production; farmer grew and used wheat on his own and didn’t ship ; no regulation of interstate commerce here i. Court expressly rejected earlier distinctions of ‘direct/indirect’ and ‘commerce/production’ ii. Test: Court upheld law because of the substantial cumulative effect of home grown wheat B. New Test After Three Cases: Substantial Effect on Interstate Commerce i. (1) No longer distinguishing between commerce and other stages; (2) direct and indirect; and (2) 10 th^ amend was not a limitation