CONSTITUTIONAL LAW
MCGOWAN
SPRING 2014
COMMERCE CLAUSE
I. The issue: Does it fall within one of the Wickard-Lopez rule categories?
Rule: Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states and with Indian tribes.”
1. Congress can regulate activity affecting two or more states; commerce is every type of intercourse which concerns more states than one (Gibbons)
2. Congress can regulate any activity, local or interstate that either in itself or in combination with other activities has a “substantial economic effect upon or effect in movement in interstate commerce (Wickard). The power to regulate commerce, although broad, does have limits and does not obliterate the distinction between what is national and what is local. To be within Congress’s power under the Commerce Clause, a federal law must either:
a. Regulate channels of interstate commerce; (Katzenbach, Heart of Atlanta)
b. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or (Shreveport, Train in Texas)
c. Regulate activities that have a substantial effect on interstate commerce (Wickard)
i. Intrastate Activities: When Congress attempts to regulate intrastate activities it has to be economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce (Raich).
1. If the activity is not commercial or economic in nature, the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce which it generally will not be able to do (Lopez)
2. The commerce clause gives Congress power only to regulate existing commercial activity; it does not give Congress the power to compel activity even if failure to undertake the activity may affect interstate commerce (Sebelius).
Cases:
1. Gibbons v. Ogden. 904: Facts: New York can’t grant an exclusive license to put a boat in a harbor when that interferes with the Fed’s licensing of vessels in the coasting trade. Congress trying to regulate commerce along several states. By requiring licenses of vessels that travel through interstate commerce. Reasoning: Con- Commerce means selling services and goods Pro- commerce implies many things. Word “among” means intermingled with and it includes activities if they affect commerce with other states or interstate commerce. Word “Commerce” means intercourse, all phases of business including navigation; the purpose of the commerce clause was to promote economic activity and Congress has always regulated navigation. Holding: Congress does have authority to regulate licenses of vessels traveling interstate.
2. Hammer v. Dagenhart. 913: Facts: Congress tried to regulate interstate commerce on goods produced by child labor. Reasoning: Congress’s ban on child labor struck because it is a state police power and it is intra state activity. Intrastate commerce. Holding: Congress does not have the authority to regulate child labor laws.
3. NLRB v. Jones & Laughlin. 919: Facts: Want to regulate manufacturing labor regulations of steel industry Reasoning: Manufacturing is part of commerce so labor regulations in steel industry are valid. Congress can protect interstate commerce from “burdens and obstructions” created by intrastate activities if danger is “close and substantial”. Permits labor regulation of national steel company… rejects distinction between manufacture and commerce. Change of view of what intrastate means… WORDS HAVE MEANING IN CONTEXT. Holding: Congress does have the authority to regulate steel industry labor regulations.
4. US v. Darby. 920: Facts: Fair Labor Standards Act Reasoning: Congress can regulate Interstate commerce even when it affects state police powers because the commerce power is plenary. Congress can regulate intrastate wages and hours if substantial effect on interstate commerce or hinder Congress’s efforts to regulate some aspect of commerce. The 10th amendment doesn’t limit the commerce clause; it’s a tautology. Holding: Congress does have the right regulate the wages and hours of a lumber mill that ships some lumber to other states?
5. Wickard v. Fillburn. 923: Facts: Agricultural Adjustment Act had quota on agricultural production of wheat Filburn had dairy farm and grew small amounts of wheat to feed his animals and for personal purposes. Filburn exceeded his quota and was fined. Reasoning: Farmer’s “trivial” contribution to interstate commerce of wheat is within commerce power because his contribution with that of many others similarly situated is far from trivial. Holding: Congress does have authority to impose Agricultural Adjustment Act.
6. Heart of Atlanta v. US. 925: Facts: Civil Rights Act that prohibited discrimination on travel establishments. Reasoning: Activity of renting a hotel is commercial and it affects travel of minorities interstate. Extends Wickard aggregation to civil rights/ buying and selling rooms, rather than just commodities. As long as there is no state law banning discrimination because 14th amendment only applies to state actors. Holding: Congress does have the authority to ban discrimination by private hotels and restaurants.
7. Katzenbach v. McClung. 927: Civil Rights act preventing discrimination at Ollie’s BBQ Reasoning: Acts of Congress are valid because it prevents discrimination and the court used a low level of scrutiny. Court figures the food is purchased in interstate commerce and customers from other states are likely to be served. Only a rational relation to commerce was necessary. Holding: Congress does have the right to prohibit race discrimination in public accommodations to Ollie’s BBQ, on state highway and 11 blocks from an interstate
8. United States v. Lopez. 929: Facts: Gun Free School Zones Act of 1990 to keep guns away from a certain distance from schools. Reasoning: Federal government of limited powers and states with plenary powers. This does not fall into any of the categories of commerce tha
carrying into execution any power granted to any branch of the federal government (Maryland)
a. Within the powers granted to the Fed, the Fed can exercise those powers to the full extent… if there is state law contrary, then Fed law trumps (Maryland)
2. Test under Necessary and Proper (Comstock) rational basis of review
Cases:
1. McCulloch v. Maryland : Facts: Federalists thought bank was necessary for a thriving economy. Democratic Republicans favored state power and distrusted banks. Reasoning: Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated power to tax, borrow money, regulate commerce, etc. Article 1 § 8 is not a laundry list but Congress may choose any non-forbidden means to carry out its power. States can’t tax Federal government because federal law is supreme and taxation could interfere with or destroy federal activity. Holding: Congress does have the authority under Necessary and Proper to charter bank.
2. US Term Limits, Inc v. Thornton: Facts: States regulating how long Federal Congressmen and Senators are able to stay in office? Reasoning: Textual arguments Con-expression unius argument- giving one power to someone implies that they don’t have other powers outside that list so ONLY time, place, manner is power that belongs to state, arguments Pro- Federalism. Constitution allows senators to judge their own elections and set those parameters. Holding: States can’t impose term limits on Senators
3. United States v. Comstock: Facts: civil commitment of a sexually violent predator. Reasoning: Civil Commitment of sexually violent predators is OK because you need some rational chain of reasoning to get from means to end. Only a rational basis is necessary to connect a statute to the enumerated power, in this case a federal statute allowing civil detainment for sexually violent predators. Rejects a one-step-removed requirement. Holding: Congress does have the authority to commit sexually violent predators.
CON
Lopez is a heightened necessary and proper analysis so it can’t be justified
Under Comstock Test we should use a “one-step removed analysis” instead of rational argument because
It is not rationally related to regulation of interstate commerce
· Theme is morality… this is by far a regulation of a moral area
· Law goes far beyond regulation of interstate commerce
o Regulates predominantly moral issue or
o State police power
