Daniel Hamilton – Constitutional Law – Spring 2011
Constitutional Law
I. Article I: Federal Legislative Power
A. Section 8 Enumerated Power
1. Para 1: Taxing Power
a) The Congress shall have Power to lay and collect Taxes, Duties…for the common Defence and general Welfare of the United States; but all…should be uniform throughout the United States
b) Tax: Broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions
(1) tax on employers for the benefit of unemployed people; social security
c) Spend: Congress has broad power to set conditions for the receipt of federal funds
(1) Conditions must be in pursuit of the general welfare
(a) Court should defer substantially to the judgment of Congress (South Dakota v. Dole)
(2) Conditions should be expressly stated so that the states know the consequences of taking federal money
(3) Conditions should have some relationship to the purpose of the spending program.
(a) Minimum drinking age and highway safety
(4) Tenth Amendment is not a limit, even as to areas that Congress might otherwise not be able to regulate.
2. Para 3: Commerce Clause
a) The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
(1) Commerce
(a) Initial Era: early in American history until the 1890s
i) Intercourse
a. Commerce is a general word. Article I section 8 is an enumeration of powers, but not definition. These powers should not be strictly construed.
b. Commerce is not only buying, selling, and interchange of commodities. As a general term, it means intercourse.
ii) Gibbons v. Ogden (Chief Justice Marshall, ferry license): Includes navigation
(b) The 1890s- 1937: A limited federal commerce power, hostility to government economic regulation, commitment to laissez-faire economic
i) Categorical Rule, only one stage of business: trade (transportation, purchase, sale, and exchange of commodities) and the instruments by which commerce is carried
a. Commerce starts at actual delivery of the commodity to a common carrier for transportation, or the actual commencement of its transfer to another state.
1) Champion v. Ames (lottery case)
1) A federal law prohibited interstate shipment of lottery tickets.
2) The power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. Carrying of lottery tickets from one state to another state is interstate commerce, because lottery tickets are subject of traffic, and therefore are subjects of commerce
b. Reason
1) It makes sense to distinguish commerce from other stages of business
2) The Constitution requires that a rigid zone of activities be left to the states
3) It is the judicial role to protect that zone.
ii) It is not
a. Manufacture
1) United States v. E.C. Knight Co.
1) American Sugar Refining Company acquired nearly complete control of the manufacture of refined sugar within the US by purchase of stock and shares of its own stock. An act of the Congress (Sherman Antitrust Act in 1890) prohibits the kind of contracts like these purchases that constitute monopoly, because these purchases constitute restraint of trade and commerce.
2) Monopoly of manufacture could to some extent affect commerce, but only indirectly, not directly. Commerce does not include manufacture. And it does not only affect necessities, but can reach out to every commodity.
3) State has exclusive power (police power) to govern people and things within its territory. Congress’s power to regulate commerce and state’s police power must have clear lines.
b. Production
1) Production ends before transportation. Production of articles intended for interstate commerce is a matter of local regulation.
2) Wages and hours, working conditions, prices (Carter v. Carter Coal Co.)
1) Congress has no legislative power over local evils, even if they greatly affect interstate commerce, because their effect is secondary and indirect. It is important, but only local
c. Counterargument
1) It would not interfere with the autonomy of the states, because the power to protect interstate commerce is expressly given by the people of all states through constitution.
2) Monopoly in manufacture: the disturbance or obstruction of freedom of buying and selling articles manufactured to be sold to people in other states directly affects people of all states. Only the federal government can regulate this.
(c) 1937-1990s: broad federal commerce power, only national power can resolve national problem
i) All phases of business, not about source, but effect
a. Affecting commerce: In commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce
ii) Labor relation and manufacture (NLRB v. Jones & Laughlin Steel Corp.)
iii) Production/manufacture was not entirely left to state regulation. Congress may control production/manufacture by regulating shipment in interstate commerce. (no shipment of any goods produced by employees under minimum wage) (United States v. Darby (the departure))
iv) The prices at which commodities in that commerce are dealt (Wickard v. Filburn)
(d) 1990s–: Rehnquist; Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress
i) Three categories
a. The use of the channels of interstate commerce (motel–to keep the civil rights cases)
1) Pierce County, Washington v. Guillen
1) Information compiled or collected in connection with certain federal highway safety program
merce power so long as there is a rational basis that an activity affects interstate commerce
vi) Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
a. Court interpreted the act narrowly to avoid constitutional doubts. Congress has not spoken clearly. So not yet with constitutional analysis
b. To challenge the application of federal civil and criminal law, one does not have to do it with constitutional analysis. They need only to show that the application of the law would raise constitutional doubts.
vii) Gonzales v. Raich (J. Stevens)
a. Local cultivation and use of small amount of marijuana for medical purposes
b. Court only has to decide whether there is a rational basis for Congress to find the substantial effect viewed in aggregation
(2) Among the several States
(a) Initial Era: “Intermingled with” (Gibbons v. Ogden)
i) Intrastate commerce
a. Can regulate if it had an impact on interstate activities, i.e., “interstate effects”
1) To intermingle with several states would require the regulation to go beyond state border.
b. Cannot regulate if it does not extend to or affect other states. (completely within a particular state)
(b) The 1890s- 1937: when there was a substantial effect on interstate commerce
i) Intrastate activities that has a direct effect on interstate commerce
a. Direct effect: railroad rates (The Shreveport Rate Cases)
1) Intrastate railroad rates in this case have such a close and substantial relation to interstate traffic that regulation of one means regulation of another.
2) Congress’s power to regulate commerce is paramount and complete. Interstate commerce cannot be destroyed or impeded by the rivalries of local government.
b. Indirect effect: transactions remain within the domain of state power (A.L.A. Schechter Poultry Corp. v. United States)
1) There must be some check on the federal commerce power. If all intrastate activities that have any effect on interstate commerce can be regulated, there’s virtually a completely centralized government.
2) Once the poultry are in the slaughterhouse, they are not a part of interstate commerce, but local business. The poultry in the slaughterhouse is not in a flow of interstate commerce. The flow stopped after it arrived in the slaughterhouse.
