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Commerce Clause
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The Commerce Clause is an enumerated power listed in the United States Constitution (Article 1, Section 8, Clause 3). The clause states that Congress has the power to regulate commerce with foreign nations, among the states, and with the Indian tribes. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to the Congress of the United States. It is common to see the Commerce Clause referred to as "the Foreign Commerce Clause", "the Interstate Commerce Clause", and "the Indian Commerce Clause", each of which refers to a different application of the same single sentence in the Constitution.
Dispute exists as to the range of powers granted to Congress by the Commerce Clause.
Discussion
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Encyclopedia
The Commerce Clause is an enumerated power listed in the United States Constitution (Article 1, Section 8, Clause 3). The clause states that Congress has the power to regulate commerce with foreign nations, among the states, and with the Indian tribes. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to the Congress of the United States. It is common to see the Commerce Clause referred to as "the Foreign Commerce Clause", "the Interstate Commerce Clause", and "the Indian Commerce Clause", each of which refers to a different application of the same single sentence in the Constitution.
Dispute exists as to the range of powers granted to Congress by the Commerce Clause. As noted below, the clause is often paired with the Necessary and Proper Clause, the combination used to take a broad, expansive perspective of these powers. Many strict constitutionalists deny that this is the proper application of the Commerce Clause.
Text and pairing
Article I, Section 8, Clause 3:
The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states that this Commerce Clause power, and all of the other enumerated powers may, be implemented by the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Significance
The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales v. Raich:
The Commerce Clause represents one of the most fundamental powers delegated to the Congress by the founders. The outer limits of the Commerce Clause power has been the subject of long, intense political controversy. Interpretation of the sixteen words of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American citizens.
Significance - Federal Rights in Navigable Waters
The commerce clause provides comprehensive powers to the United States over navigable waters. These powers are critical to understanding the rights of landowners adjoining or exercising what would otherwise be riparian rights under the common law. The Commerce Clause confers a unique position upon the Government in connection with navigable waters. "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States . . . . For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." UNITED STATES v. RANDS, 389 U.S. 121 (1967). The Rands decision continues:
This power to regulate navigation confers upon the United States a dominant servitude, FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596 -597 (1941); Gibson v. United States, 166 U.S. 269, 275 -276 (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, South Carolina v. Georgia, 93 U.S. 4 (1876), or otherwise impair or destroy a riparian owner's access to navigable waters, Gibson v. United States, 166 U.S. 269 (1897); Scranton v. Wheeler, 179 U.S. 141 (1900); United States v. Commodore Park, Inc., 324 U.S. 386 (1945), even though the market value of the riparian owner's land is substantially diminished.
Other scholars, such as Robert H. Bork and Daniel E. Troy, argue that prior to 1887, the Commerce Clause was rarely invoked by Congress, and thus a broad interpretation of the word "commerce" was clearly never intended by the Founders. In support of this claim, they argue that the word "commerce", as used in the Constitutional Convention and the Federalist Papers, can be substituted with either "trade" or "exchange" interchangeably while preserving the meaning of the statements. They also point to Madison's statement in an 1828 letter that the "Constitution vests in Congress expressly...'the power to regulate trade'."
Examining contemporaneous dictionaries does not neatly resolve the matter. For instance, the 1792 edition of Samuel Johnson's Dictionary of the English Language defines the noun "commerce" narrowly as "[e]xchange of one thing for another; interchange of any thing; trade; traffick", but it defines the corresponding verb "to commerce" more broadly as "[t]o hold intercourse". The word "intercourse" also had a different and wider meaning back in 1792 than it does now.
Early years (1800s-1930s)
In Gibbons v. Ogden (1824), Chief Justice John Marshall ruled that the power to regulate interstate commerce also included the power to regulate interstate navigation: "Commerce, undoubtedly is traffic, but it is something more—it is intercourse ... [A] power to regulate navigation is as expressly granted, as if that term had been added to the word 'commerce' ... [T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines." The Court's decision contains language supporting one important line of Commerce Clause jurisprudence, the idea that the electoral process of representative government represents the primary limitation on the exercise of the Commerce Clause powers:
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments....
In Gibbons v Ogden, the Court struck down New York's attempt to grant a steamboat monopoly to Robert Fulton, which he had then ultimately franchised to Ogden. Ogden claimed that river traffic was not "commerce" under the Commerce Clause and further that Congress could not interfere with New York State's grant of an exclusive monopoly within its own borders. Ogden's assertion was untenable: he contended that New York could control river traffic within New York all the way to the border with New Jersey, that New Jersey could control river traffic within New Jersey all the way to the border with New York, leaving Congress with the power to control the traffic as it crossed the state line.
Thus, Ogden contended, Congress could not invalidate his monopoly as long as he only transported passengers within New York. The Supreme Court, however, found that Congress could invalidate his monopoly since it was operational on an interstate channel of navigation.
In its decision, the Court assumed that interstate commerce required movement of the subject of regulation across state borders. The decision contains the following principles, some of which have since been altered by subsequent decisions: 1. Commerce is "intercourse, all its branches, and is regulated by prescribing rules for carrying on that intercourse." 2. Commerce among the states cannot stop at the external boundary-line of each state, but may be introduced into the interior... Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more states than one." 3. The Commerce power is the power to regulate, that is "to prescribe the rule by which commerce is to be governed" which "may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."
In Cherokee Nation v. Georgia (1831), the Supreme Court addressed whether the Cherokee nation is a foreign state in the sense in which that term is used in the constitution. The Court provided a definition of Indian tribe that clearly made the rights of tribes far inferior to those of foreign states. In part the court said:
"Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."
Dormant Commerce Clause jurisprudence
As explained in United States v. Lopez, "For nearly a century thereafter (that is, after Gibbons), the Court's Commerce Clause decisions dealt but rarely with the extent of Congress' power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce. See also L. Tribe, American Constitutional Law 306 (2d ed. 1988). Under this line of precedent, the Court held that certain categories of activity such as "production," "manufacturing," and "mining" were within the province of state governments, and thus were beyond the power of Congress under the Commerce Clause. See Wickard v. Filburn, 317 U.S. 111, 121 (1942) (describing development of Commerce Clause jurisprudence)." When Congress began to engage in economic regulation on a national scale, the Court's dormant Commerce Clause decisions influenced its approach to Congressional regulation.
In this context, the court took a formalistic approach, which distinguished between manufacturing and commerce, direct and indirect effects on commerce, and local and national activities. See concurring opinion of Justice Kennedy in United States v. Lopez. ("One approach the Court used to inquire into the lawfulness of state authority was to draw content-based or subject-matter distinctions, thus defining by semantic or formalistic categories those activities that were commerce and those that were not.") The Dormant Commerce Clause formalisms spilled over into its Article I jurisprudence. While Congress had the power to regulate commerce, it could not regulate manufacturing, which was seen as being entirely local. In Kidd v. Pearson, (1888) the Court struck a federal law which prohibited the manufacture of liquor for shipment across state lines. Similar decisions were issued with regard to agriculture, mining, oil production, and generation of electricity. In Swift v. United States (1905), the Court ruled that the clause covered meatpackers; although their activity was geographically "local," they had an important effect on the "current of commerce", and thus could be regulated under the Commerce Clause. The Court's decision halted price fixing. Stafford v. Wallace (1922) upheld a federal law (the Packers and Stockyards Act) regulating the Chicago meatpacking industry, because the industry was part of the interstate commerce of beef from ranchers to dinner tables. The stockyards "are but a throat through which the current [of commerce] flows," Chief Justice Taft wrote, referring to the stockyards as "great national public utilities." As Justice Kennedy has written: "Though that [formalistic] approach likely would not have survived even if confined to the question of a State's authority to enact legislation, it was not at all propitious when applied to the quite different question of what subjects were within the reach of the national power when Congress chose to exercise it." United States v. Lopez, concurring opinion.
The court would also examine the purpose behind the creation of the law, and would invalidate otherwise valid federal regulations if the purpose was to have an affect on something which was outside of the scope of the Commerce Clause.
New Deal
In 1936, Roosevelt and Congress were implementing New Deal policies and the Supreme Court struck down a key element of the New Deal's regulation of the mining industry, on the grounds that mining was not "commerce". After the Presidential and Congressional elections of 1936, Roosevelt began an assault on what he regarded as the Court's anti-democratic decisions. (In the preceding decades, the Court had struck down a laundry list of progressive legislation - minimum-wage laws, child labor laws, agricultural relief laws, and virtually every element of the New Deal legislation that had come before it.) After winning the 1936 Federal elections, Roosevelt proposed a plan to appoint an additional Justice for each sitting Justice over age 70. Given the age of the current Justices, this allowed a Supreme Court size of up to 15 Justices. Roosevelt claimed that this was not to change the rulings of the Court, but to lessen the load on the older Justices, who he said were slowing the Court down.
There was widespread opposition to this court packing plan and in the end Roosevelt abandoned it. In what became known as "the switch in time that saved nine," Justice Owen Josephus Roberts and Chief Justice Charles Evans Hughes switched sides in 1937 and, in the case of the National Labor Relations Board v. Jones & Laughlin Steel Corporation, upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over labor relations across the United States.
The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated in Gibbons v. Ogden. Central to this theory was the belief that the democratic process was sufficient to confine the legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is. The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. The debate over Commerce Clause jurisprudence thus includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the Federal courts.
When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. Intrastate activities could fall within the scope of the Commerce Clause, if those activities would have any rational effect on Interstate Commerce. Finally, the 10th Amendment "is but a truism" United States v. Darby (1941) and was not considered to be an independent limitation on Congressional power.
In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In Wickard v. Filburn, (1942) the Court upheld the Agricultural Adjustment Act, which sought to stabilize wide fluctuations in the market price for wheat by stabilizing supply through quotas. The Court's decision rejected former decisions that seemed to focus on "Whether the subject of the regulation in question was production, consumption, or marketing. Those formalistic characterizations were
not material for purposes of deciding the question of federal power before us. That an activity: is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But 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 and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'
Congress could apply national quotas to wheat grown on one's own land, for one's own consumption, because the total of such local production and consumption was sufficiently large as to impact the overall goal of stabilizing prices.
This change in the Court's decisions is often referred to as the Constitutional Revolution of 1937, in which the Court shifted from engaging in judicial activism to protect property rights, to a paradigm which focused most strongly on protecting civil liberties. Some commentators view the Court's decision in United States v. Lopez (1995), as an important swing in the pendulum away from an expansive view of Congressional power.
Civil rights
The wide interpretation of the scope of the Commerce Clause continued following the passing of the Civil Rights Act of 1964, which aimed to prevent business from discriminating against black customers. In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers; in Katzenbach v. McClung (1964) the Court ruled that the federal government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in Daniel v. Paul (1969), the Court ruled that the federal government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.
The Rehnquist Court
The Rehnquist Court's Commerce Clause jurisprudence has been characterized as restoring limits to the Interstate Commerce Clause that were removed in post-New Deal decisions. It upheld Congress's plenary authority to legislate in Indian affairs that was derived from the Worcester decision's interpretation of the Indian Commerce Clause, but modified Worcester by giving the several states some jurisdiction over Indian affairs beyond what had been granted to them by Congress. Another view is that the Court was compelled to define limits to address Congressional legislation which sought to use the Interstate Commerce Clause power in new and unprecedented ways. In United States v. Lopez, the Court confronted conviction of a 12th Grade student for carrying a concealed handgun into school in violation of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). The Gun-Free School Zones Act, made it a federal offense for any individual knowingly to possess firearm at place that individual knows or has reasonable cause to believe is school zone. The legislation posed several challenging problems for Commerce Clause jurisprudence. Education is a traditionally local government activity. While education undoubtedly has an economic aspect, the nexus between regulating gun violence and the Commerce Clause power seems particularly strained. In Wickard v. Filburn, Congress was exercising its Commerce Clause power to regulate local economic activity in ways that the States were powerless to regulate, because only the Federal government could effectively control the national wheat supply. Arguably, if Congress could regulate local acts of gun violence simply because it had a local impact, the entire police power could be nationalized on the theory that all crime has an economic impact.
As the majority explained:
Section 922(q) is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.
The opinion pointed out that prior decisions had 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's commerce authority includes the power to regulate those activities having a substantial relation to Interstate Commerce i.e., those activities that substantially affect Interstate Commerce,
Thus the Federal government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools, as in the Lopez case. This was the first time in 60 years, since the conflict with President Franklin D. Roosevelt in 1936-37, that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress's commerce power. Justice Clarence Thomas, in a separate concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.
The Lopez decision was clarified in United States v. Morrison, 529 U.S. 598 (2000), in which the Supreme Court invalidated § 40302 of the Violence Against Women Act ("VAWA"). The VAWA created civil liability for the commission of a gender-based violent crime, but without any jurisdictional requirement of a connection to Interstate Commerce or commercial activity. 42 U.S.C. § 13981(c). Once again, the Court was presented with a Congressional attempt to criminalize traditional local criminal conduct. As in Lopez, it could not be argued that State regulation alone would be ineffective to protect the aggregate impacts of local violence. The Court explained that in both Lopez and Morrison "the noneconomic, criminal nature of the conduct at issue was central to our decision." Furthermore, the Court pointed out that in neither case was there an " 'express jurisdictional element which might limit its reach (to those instances that) have an explicit connection with or effect on interstate commerce.' " Id. at 1751 In both cases, Congress criminalized activity that was not commercial in nature without including a jurisdictional element establishing the necessary connection between the criminalized activity and Interstate Commerce.
The Court found in Seminole Tribe v. Florida, 517 U.S. 44 (1996) that, unlike the Fourteenth Amendment, the Commerce Clause does not give the Federal government the power to abrogate the sovereign immunity of the states.
Many described the Rehnquist Court's Commerce Clause cases as a doctrine of "New Federalism". The outer limits of that doctrine were delineated by Gonzales v. Raich (2005), in which Justices Antonin Scalia and Anthony Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a Federal law regarding marijuana. The Court found the Federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered Interstate Commerce. The court held that Congress may regulate a non-economic good, which is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce.
The Tenth Amendment to the Constitution has in the last two decades played a part in the Court's view of the Commerce Clause. The Tenth Amendment states that the Federal government of the United States has only the powers specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people. The Commerce Clause is an important source of those powers delegated to Congress, and therefore its interpretation is very important in determining the scope of Federal power in controlling innumerable aspects of American life. The Commerce Clause has been the most widely interpreted clause in the Constitution, making way for many laws which, some argue, contradict the original intended meaning of the Constitution. The Supreme Court Justice Clarence Thomas has gone so far as to state in his dissent to Gonzales v. Raich,
Themes
Rational Basis Review
The evolving level of scrutiny applied by Federal courts to Commerce Clause cases should be considered in the context of . The idea behind rational basis review is that the judiciary must show deference to the elected representatives of the people. A respect for the democratic process requires that the Courts uphold legislation if there are rational facts and reasons that could support Congressional judgment, even if the Justices would come to different conclusions. Throughout the 20th century, in a variety of contexts, courts sought to avoid second guessing the legislative branch, and Commerce Clause jurisprudence can be seen as a part of this trend. Lawrence Tribe states:
Since 1937, in applying the factual test Jones & Laughlin to hold a broad range of activities sufficiently related to interstate commerce, the Supreme Court has exercised little independent judgment, choosing instead to defer to the expressed or implied findings of Congress to the effect that regulated activities have the requisite "economic effect." Such findings have been upheld whenever they could be said to rest upon some rational basis. (Citing Heart of Atlanta Motel, Inc. v United States, 1964)
Justice Rehnquist echoed this point in his opinion in United States v. Lopez, stating: Since (Wickard), the Court has ....undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280 (1981); Perez v. United States, 402 U.S. 146, 155-156(1971); Katzenbach v. McClung, 379 U.S. 294, 299-301(1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253(1964)
Rational basis review begins with establishing the factual predicate upon which the exercise of Congressional power is based. This factual basis might come from a variety of sources. It might come from factual determinations made by Congress, passed in the legislation itself, or found in the Congressional Reports issued to accompany the legislation. It might come from the record of testimony complied in Committee Hearings. It might come from facts posited by proponents in their briefs in support of the legislation. For example, in Katzenbach v. McClung, the Court referenced extensive testimony presented in hearings in support of the conclusion that discrimination in public accommodations has a deleterious impact on interstate commerce. The Court wrote:
Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.
Similarly, the Court upheld a ban on the growth of marijuana intended for medical use on the grounds that Congress could rationally conclude that this growth might make enforcement of drug laws more difficult by creating an otherwise lawful source of marijuana that could be diverted into the illicit market:
In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Gonzales v. Raich
Role of the Political Process
Since its decision in Gibbons, the Supreme Court has recognized that judicial limitations on Congressional exercise of its Commerce Clause powers represent an invasion of the democratic process. Of course, in some sense, by its very nature, the Constitution represents a constraint on the democratic process, because our Constitution represents a set of rules which may not be overturned through ordinary democratic means. Nevertheless, the Court regularly points out that the primary limitation on unwise exercise of Congressional Commerce Clause must be found at the ballot box. Thus in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) the Court stated:
Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action--the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated.
External links
- P.A. Madison,
- David Morris, AlterNet, June 15, 2005,
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