Introduction [97]

           

The Commerce Clause constitutes the principal domestic power of the federal government. The interpretation of the Commerce Clause has changed over time.

 

§4.01   Marshall’s Conception [97-99]

 

In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), Chief Justice Marshall articulated a broad vision of the Commerce Clause.

 

a. “Commerce” extended beyond navigation to include commercial intercourse.

 

b. “Regulate” involved the power to prescribe the rule by which commerce could be governed.

 

c. “Among the states” did not include “that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or effect other States.”  Implicitly, it did include commerce which affected another state even though it did not involve crossing a state line.

 

i. Of course, much of this discussion was dicta because the facts of the case clearly involved interstate movement.

 

The nineteenth century included little federal legislation and most interpretations of the Commerce Clause dealt with state rather than federal regulation.

 

§4.02   Productive Industries [99-107]

           

            [1]  The E.C. Knight Formal Approach

 

The predominant approach during the early twentieth century used formalistic doctrine to limit the power of the federal government to regulate under the Commerce Clause.

 

United States v. E. C. Knight Co., 156 U.S. 1 (1895), illustrated the formalistic approach, distinguishing between manufacture and commerce, indirect and direct effects, and local and national activities.  Congress could regulate commerce but not manufacture activities which affected commerce directly but not indirectly, and national activities but not local ones.  The monopoly of sugar production at issue in the case was on the manufacture, indirect and local side of the line.

 

[2]  Other Doctrinal Streams

 

Two other doctrinal streams coexisted with those followed in E. C. Knight although they were reserved for businesses affected with a public interest

 

a.    In the Shreveport Rate Case, 234 U.S. 342 (1914), the Court upheld congressional authority to regulate intrastate rail rates which had close and substantial relationship to interstate rail traffic.

 

b.    Stream or Current of Commerce approach–This approach, associated with Swift & Co. v. United States, 196 U.S. 375 (1905), allowed Congress to regulate activities that were part of a stream of commerce.

 

            [3]  Early New Deal Cases

 

Early New Deal cases adopted the approach of E. C. Knight and struck down New Deal legislation based on the three tests formulated there.  See e.g., Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935), Carter v. Carter Coal Co., 298 U.S. 238 (1936).  Tensions in these tests were becoming evident, however, and this approach narrowly survived in Carter Coal over Justice Cardozo’s dissent which suggested that federal power should exist to regulate activities which had a close and intimate and obvious relationship to commerce.

 

            [4]  Jones & Laughlin

 

The Court adopted Justice Cardozo’s approach in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) to uphold the National Labor Relations Act of 1935 in a 5-4 decision.  In place of the bright line tests which E. C. Knight had sought to apply, the Court suggested that it would proceed on a case by case basis to determine if the activity Congress was regulating had a close and substantial relationship to commerce.

 

            [5]  Darby and Wickard

                 

The Court broke decisively with the dual federalism approach of the early 20^th century in United States v. Darby, 312 U.S. 100 (1941), and Wickard v. Filburn, 317 U.S. 110 (1942).  Darby held that Congress could regulate productive activity that had a substantial effect on commerce.  Wickard allowed Congress to regulate farm production intended solely for consumption on the farm.  The cumulative effect of such production, when aggregated could have a substantial effect on commerce, thereby justifying federal regulation.

 

§4.03   Regulation Versus Prohibition [107-111]

           

            [2]  Child Labor Case

 

The Court’s Commerce Clause jurisprudence also changed in cases which clearly involved interstate activity.  In the Child Labor Case, 247 U.S. 251 (1918), the Court had struck down a federal law regulating movement of goods in interstate commerce made in factories which used child labor.  The Court concluded that such legislation was a pretext for regulating productive activity and argued that the only harm occurred in the producing state, not the receiving state.

                                   

            [3]  Darby and Bootstrapping

 

1.   In Darby, the Court rejected this approach.  Congress’ motive was irrelevant.  Congress had power to regulate transportation of products made using labor that did not meet certain conditions.

 

            2.   Darby also expanded Congress’ ability to regulate through the Commerce Clause by endorsing a bootstrapping approach which linked the Commerce Clause and Necessary and Proper Clauses.  Since Congress could under the Commerce Clause regulate the interstate movement of goods made using certain labor it could also regulate production of such goods as a means reasonably adapted to achieve the permitted end.

 

§4.04   1964 Civil Rights Act [111-112]

                 

The Modern Commerce Clause jurisprudence followed from Darby and Wickard and featured extensive deference to Congress.

 

The 1964 Civil Rights Act rested on the Commerce Clause. The Court upheld the Act in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) even though Congress used the Commerce Clause to address the moral evil of racial discrimination in public accommodations.

 

§4.05 Outer Limits [112-113]

 

§4.06   Lopez: Another Turning Point? [113-116]

 

In United States v. Lopez, 514 U.S. 549 (1995) the Court in a 5-4 decision struck down a federal law making it unlawful to possess a gun near a school.  The Court held that the legislation did not involve an economic or commercial activity which had a substantial affect on commerce and accordingly was outside the federal commerce power. Lopez represented the first time in nearly 60 years where the Court struck down a federal law as violating the Commerce Clause.

 

Five years later, in United States v. Morrison, 529 U.S. 598 (2000) the Court held that the Commerce Clause did not authorize Congress to adopt the Violence Against Women Act (VAWA).  Although Congress had made extensive findings that violence against women impacted the economy, the Court held that the findings were too attenuated from commerce to support the legislation.