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The evolution of the Commerce Clause in the United States, focusing on its role in civil rights and interstate commerce. The author examines the attitudinal model and its application to Supreme Court commerce clause cases from 1939-2012. the distinction between interstate and intrastate commerce, the Dormant Commerce Clause, and various eras of Commerce Clause jurisprudence, including the Lochner era and modern developments. The document also touches upon the role of ideology and the Court's use of signals to determine when laws burden interstate commerce.
Typology: Schemes and Mind Maps
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An Undergraduate Research Scholars Thesis by CHARLES RAYMOND ARVIN
Submitted to Honors and Undergraduate Research Texas A&M University in partial fulfillment of the requirements for the designation as
Approved by Research Advisor: Dr. James Rogers
May 2013
Major: Political Science Economics
Recent scholarship in the field of judicial politics has emphasized the importance of motivating factors in understanding judicial behavior. One such factor, policy preferences, has been thoroughly outlined and rigorously tested with generally positive results (see, for example, Segal and Spaeth 1993, 2002, Pritchett 1941, Heck 1981, Banks and Blakeman 2012). While the results from this attitudinal model have been very powerful, some scholars have highlighted the need to consider other influences, including precedent and institutional constraints, in addition to attitudinal predictions (see, respectively, Kastellec 2010 and Clark 2011).
In this work, I seek to add evidence that precedent and institutional constraints do matter to justices. Beyond this, I seek to demonstrate that purely attitudinal models, though adept in some instances, suffer from a fatal flaw: namely, that many cases have conflicting policies at play. In cases where justices are pulled in different directions by these different policy dimensions, attitudinal predictions are theoretically unsound and empirically suspect.
Because this work focuses on the effects of precedent and institutional constraints, I examine the Supreme Court’s commerce clause jurisprudence. The commerce clause has a number of important features which make it ideal for this study. First, commerce clause cases generally involve multiple policy dimensions (for example, a given case involves both an assessment of the policy and an assessment of the actor, whether federal or local, implementing the policy). In
cases where these different dimensions diverge, attitudinal predictions are unsound and fail to predict with any significant accuracy as the results demonstrate.
Beyond this, the commerce clause has a relatively clear precedent that has remained largely unchanged over time. Although no precedent has gone completely unchanged, the general trend has remained the same throughout its many eras: specifically, that the clause is to regulate and prevent states from imposing economic externalities upon the other states (Carrubba and Rogers 2003). Equally importantly, this precedent is fairly unambiguous as the Court can generally see such harms through the use of amicus curiae briefs. When many states petition the Court in opposition to a given policy, they send a clear signal that the policy does harm interstate commerce. Likewise, when many states support a given policy, the opposite signal is sent. This clear precedent allows a glimpse into the effect of precedent on court output.
As the following discussion will expand upon, I argue that attitudinal perspectives are incapable of explaining the Court’s commerce clause jurisprudence. Instead, the Court uses signals sent from the federal government and state governments to ensure that negative externalities on interstate commerce are removed. Through the use of statistical analysis and classification trees, this work finds evidence that amicus briefs are significantly more adept at explaining judicial outcomes than traditional ideological concerns. Furthermore, this evidence supports the claim that the Court applies these signals in a manner consistent with commerce clause precedent.
This work consists of 5 sections. In Section II, I present a history of the commerce clause, tracing the growth of the commerce clause throughout history. In Section III, I expound upon the theory underlying this work. In Section IV, the methodology and results are presented. Substantive conclusions are developed in Section V.
with respect to commerce. Was this an exclusive grant of power to Congress and, if not, where did the boundaries lie?
The Supreme Court’s first major step towards answering these questions came in Gibbons vs Ogden , in which the state of New York issued an exclusive grant of rights to the waterways in the state. Chief Justice John Marshall painted the Commerce power in a very broad light, providing that the power was limited not only to commercial transactions but also to regulations of navigation, a vital part of interstate regulation. Furthermore, dicta in the opinion suggested that the clause was to be understood in a “plenary” manner, “[acknowledging] no limitations other than are prescribed in the Constitution.” (22 U.S. 1, 196-7). At the same time, however, a distinction was made between interstate commerce and “the purely internal commerce of a State.” ( Id., at 204). This distinction between interstate commerce and intrastate commerce represented the first of many such distinctions in the Commerce Clause jurisprudence.
Interestingly, the Court began to move away from the broad understanding of the commerce power espoused in Gibbons relatively quickly. In Cooley vs Board of Wardens , for example, a regulation requiring the hiring of a local pilot to enter or leave Philadelphia was upheld despite the obvious effects on navigation, an interstate issue. Instead, the Court suggested that the Congressional power was “compatible with the existence of a similar power in the states”, indicating that commerce could be regulated by states as long as Congressional action did not preempt such regulations. (53 U.S. 299, 318). Similarly, Munn vs Illinois allowed states to regulate, among other things, warehouses which are used by others engaged in interstate commerce. These cases and others outlined a “negative implication” of the Commerce power, the Dormant Commerce Clause, which allowed certain state regulations on interstate commerce to pass Constitutional muster.
The Gibbons decision also raised a significant question about defining exactly what “internal commerce of a State” was. Decisions like Munn highlight the close proximity between interstate and internal commerce. In that case, the warehouses themselves were internal commerce, even though they were frequently used by interstate companies and the regulations “may indirectly operate upon commerce outside its immediate jurisdiction.” (94 U.S. 113, 135). By contrast, Hall vs DeCuir extended federal control to preempt legislation regulating the presence of blacks and whites within the same ship cabin as a result of its effects on transportation among states.
E.C. Knight and the current of commerce
In an effort to resolve such questions, the Court moved to a new standard, in which some activities, like transportation, were interstate, while others, like manufacturing, were necessarily internal commerce. This theory focused chiefly on the type of economic activity taking place. In Kidd vs Pearson , for example, the manufacture of alcohol did not qualify as interstate commerce until it had ”been shipped or entered with a common carrier for transportation to another state” (12 U.S. 1, 25). Likewise, in United States vs E.C. Knight Company , a monopoly in manufacturing alone was not sufficient to prove that such a monopoly obstructed interstate commerce. Under this more formalistic theory, Congress could only regulate those goods which has entered interstate commerce.
In Kidd , then, states could prohibit the manufacture of goods within their state, but regulations regarding the importation of such goods might not pass Constitutional muster. Similarly, in E.C. Knight , had the Sherman Antitrust Act been used to control the distribution, rather than the production of goods, the results may have differed. This theory offered a straightforward (if
In Hammer vs Dagenhart, the Court struck down a law prohibiting the interstate trade of goods produced with excessive child labor, holding that such a law exceeded Congressional power to regulate commerce. In one of the relatively few Court opinions to ever be explicitly overruled, the Hammer court distinguished the production of cotton, even cotton produced by child labor, from the societal evils described above. According to the Hammer Court, because the production of cotton itself was not immoral and the Court had previously held production to be outside Congressional purview, the regulation in question could not be upheld.
The new deal
Of course, it takes little awareness to see that child labor is now largely illegal, a change that came about largely as a result of the expansive understanding of the Commerce Clause which marked the New Deal era. In an effort to reverse the damage done by the Great Depression, President Roosevelt signed into law numerous pieces of legislation intended to regulate interstate commerce. These broad pieces of legislation set up significant conflicts between the Court and the President, best illustrated by the (perhaps apocryphal) stories of the Court’s sudden “switch” in response to the threat of a court-packing scheme proposed by Roosevelt himself.
Regardless of the historical accuracy of the switch, the Court did initially position itself as an opponent to much of the early New Deal legislation. Carter vs Carter Coal Company struck down regulations of labor practices and pricing schemes for the coal industry, relying on the distinction between production and sales in E.C. Knight. Schechter Poultry Corp. vs United States similarly struck down regulations on the poultry industry due to Schecter’s almost complete reliance on intrastate rather than interstate commerce. Because any effects on interstate commerce would be minimal and indirect, the Court disposed of the regulations.
Over time, however, the Court began to signal a clear shift away from such rigid and limited definitions of interstate commerce, moving instead to the standards proposed in National Labor Relations Board vs Jones and Laughlin Steel. Jones largely abandoned both the “current of commerce” theory as well as the distinction between production and distribution. Instead, the Court defined Congressional reach to include any activities which were likely to burden or obstruct interstate commerce. Thus, even labor disputes at a single production facility, the issue in Jones , could fall within interstate commerce as long as some burdensome effect resulted.
The shift became even more apparent in United States vs Darby , in which the Court unanimously overturned Hammer, condemning its “departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision.” (312 U.S. 100, 116- 7). The Fair Labor Standards Act, which set, among other things, a minimum wage which had been rejected by previous Courts, was upheld as a valid regulation of interstate commerce.
Finally, in Wickard vs Filburn , the Court offered what many have called the most expansive view of the Commerce Clause in history. In Wickard , the Agricultural Adjustment Act was upheld, imposing a tax on all farmers who grew more than their allotted quota of wheat. Surprisingly, however, the Act was enforceable even against individual farmers who disposed of the wheat not by the market mechanism but by simply feeding it to their animals. In the opinion, the Court strongly rejected the notions of direct and indirect effects and local activities, which were dismissed as “a few dicta”. (317 U.S. 111, 119). The Court also rejected the formulaic approaches of the past, stating that “a review of the course of decision under the Commerce Clause will make plain…that questions of the power of Congress are not to be decided by
a handgun may in fact have an effect on interstate commerce, the Court held, such possession was not economic activity. Therefore, Congress exceeded its powers in passing the GFSZA.
Similar logic was employed in United States vs Morrison five years later. Although Congress presented voluminous records demonstrating a link between domestic violence, the Court again found that domestic violence is noneconomic in nature and struck down the Violence Against Women Act. In so doing, the Court sent a clear signal that this economic activity distinction was more than passing dicta, but questions still remained regarding the impact of this distinction. It seemed straightforward that roadside hotels and ship travel would qualify as economic activity, but what of growing wheat or engaging in labor disputes? Neither issue lent itself to clear categorization under this new distinction.
The Court’s decision in Gonzales vs Raich in 2005 strongly suggested that older precedents like Wickard continued to be good law despite recent doubt. In fact, the inherent similarities between Raich and Wickard , which both focused on individuals growing commodity crops, led the Court to employ a close parallel to the logic of its predecessor sixty years before. This tantalizing glimpse into the ramifications of this new distinction, though important, will nonetheless need to be refined further to understand exactly what Lopez and Morrison meant to the Commerce Clause jurisprudence.
The attitudinal model Since Segal and Spaeth’s (1993, 2002) seminal work on the attitudinal model, the question of policy preferences has been an important component of judicial politics. For attitudinalists, judges operate in much the same way as other political actors: specifically, they seek to decide cases in a manner consistent with their policy preferences. Thus, conservative judges decide cases in a conservative manner, while liberal judges do the opposite. This intuitive model finds support in a number of works, including (Segal and Cover 1989, Brisbin 1996, Hagle and Spaeth 1991, 1993). While some scholarship suggests that ideology is the predominant factor (see Unah and Hancock 2006, Spaeth and Segal 1999, Rohde and Spaeth 1976), others envision ideology as one factor among many (see Bartels 2009, Collins 2008, Lindquist and Klein 2006).
How would an ideologically driven Court address commerce clause cases? Two possibilities exist. Many measures of judicial ideology, including the Supreme Court Database, classify commerce clause decisions as conservative if they are decided in favor of the states and liberal if they are decided in favor of the federal government. This can lead to some questionable classifications. For example, Perez vs United States is classified as a liberal decision despite upholding a conviction (traditionally a conservative ruling). Likewise, United States vs Lopez is classified as a conservative decision despite reversing a conviction.
Sebelius ). Although the tests may have changed, the principle behind the tests has been fairly consistent.
How then does the Court know when a burden to interstate commerce exists? In this paper, I propose that the Court uses the presence of amicus briefs to indicate when a law is harmful. The filing of an amicus brief is a costly endeavor, requiring significant amounts of effort. Because these briefs are not simple cheap talk but instead a costly signal, the Court can use these to indicate when laws are sufficiently harmful as to burden interstate commerce. A brief from either the states or the federal government sends a clear signal that the law in question is imposing significant economic costs and needs to be struck down. For federal regulations, the same principle applies. When states choose to oppose a federal regulation, they are signaling that Washington is overstepping its bounds and harming interstate commerce.
Importantly, this measure of harm comports perfectly with the Court’s traditional test in dormant commerce clause cases. For dormant commerce clause cases, the Court has traditionally employed a balancing test to determine whether the state’s benefits clearly outweigh the harms to interstate commerce (see Pike vs Bruce Church and Kassel vs Consolidated Freightways Corporation ). Thus, incidental harms are not unconstitutional. Instead, it is only when those harms are substantial that the Court becomes concerned. As amicus briefs are unlikely to be filed for mere incidental harms, this test comports with the use of amicus briefs as a signal to the Court.
If these precedents are an important factor in the Court’s decision-making process, we should expect to see laws struck down with greater frequency if other governmental actors signal opposition to the law. This leads to Hypothesis 3.
Hypothesis 3: The presence of one or more amicus briefs from other governmental actors opposing a law should decrease the likelihood of the law being upheld.
Scholarship also suggests that state regulations face a substantially higher burden of proof than federal regulations. (see Denning 2008, Farber and Hudec 1994, Tushnet 1979) While federal regulations must generally withstand only rational basis review. For example, the Court held in United States vs Lopez that the Court has “undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.” By contrast, local regulations must generally withstand a more heightened level of scrutiny. Laws which do not discriminate against interstate commerce must still withstand the above balancing test, while laws which have a discriminatory purpose or effect are considered under strict scrutiny, the Court’s most exacting standard.
If precedent is an important factor, we should expect to see federal regulations upheld at a higher rate than state regulations. This leads to Hypothesis 4.
Hypothesis 4: Ceteris paribus , the Court should be more likely to uphold federal regulations than state regulations.
Unifying these two models
The next important step is to develop a way of testing both of these models into one consistent model. Specifically, it is important to detail how a Court might act if they are motivated by both ideology and precedent. For a Court which values both ideology and precedent, justices are likely to be confronted with cases in which ideology and precedent pull them toward different outcomes. In these cases, a number of possibilities exist. Justices might simply adhere to ideology or precedent exclusively and rule in that manner. However, they might also engage in a
Dependent variable In this section, we test the above hypotheses. The data used is drawn from all Supreme Court commerce clause and dormant commerce clause cases from 1937-2012, a total of 188 cases. The unit of analysis is the case.
My dependent variable, For Action , is a measure of the outcome of a given case. If the Court rules to uphold a regulation, regardless of the origin of the regulation, this variable is coded as a
Note that these measures do not address the nature of the regulation. For example, pro-business and pro-union regulations are both judged on one characteristic: whether the regulation was upheld. Importantly, these values are significantly different from outcome-based measures used elsewhere, including the Supreme Court Database, because of this emphasis, avoiding problems of endogeneity.
Independent variables
In order to test attitudinal predictions, the first independent variable, Ideology , is a measure of a justice’s policy preferences. Drawn from the Martin-Quinn ideology scores, I use the median member to determine the Court’s overall ideology (see Martin and Quinn 2002 and Martin, Quinn and Epstein 2005). Although these are vote-based scores, they rely on the traditional
liberal/conservative dichotomy rather than the more specific measure used here. Although endogeneity is an unavoidable problem, this distinction should make the problem minimal.
The variable Local Action is a simple measure of the source of the law at issue. For cases involving local regulations, this variable is coded as a 1. If the case involves federal regulation, this variable is coded as a 0.
In order to test the precedential model, I use four variables, drawn from the amicus briefs and counsel arguing before the Court. Federal Conflict is coded as a 1 in cases where the federal government opposes one or more local governments (through either amicus briefs or counsel) and a 0 otherwise. Federal Support is coded as a 1 in cases where the federal government sides with one or more local governments and a 0 otherwise. Local Conflict is coded as a 1 in cases where one or more local governments oppose another local government and a 0 otherwise. Local Support is coded as a 1 in cases where one or more local governments side with another local government and a 0 otherwise.
To illustrate these variables, consider a few landmark cases. In United States vs Lopez, both Federal Conflict and Federal Support would be coded as a 1 as states filed amicus briefs both supporting and opposing the GFSZA. In Bibb vs Navajo Freight Lines, Local Conflict would be coded as a 1 because states filed amicus briefs opposing the Illinois law. In South Carolina State Highway Department vs Barnwell Brothers, both Federal Conflict and Local Support are coded as a 1, as the federal government opposed South Carolina while other local governments supported South Carolina.
As the results section explains, these can be condensed into two broader variables, Conflict and Support. Conflict is coded as a 1 if either Federal Conflict or Local Conflict are coded as a 1, and
