Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas as a separate power granted to Congress. It is therefore common to see references to the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause, each of which refers to the power granted to Congress in this section.
The use of the Commerce Clause by Congress to justify its legislation has been the subject of ongoing, strong constitutional and political disagreement since the 1930s. The government of the United States only has the power to regulate matters delegated to it by the Constitution; other powers are reserved to the States or to the people. Over the years, however, Congress has justified many types of legislation by claiming the regulated activity affects interstate commerce, however tenuously, and therefore falls under the purview of Congress under the Commerce Clause. The Supreme Court has nearly always upheld this broad interpretation.
History
Early years 1824-1936
In Gibbons v. Ogden (1824), 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."
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 curve. The Court's decision halted price fixing. Stafford v. Wallace (1922) upheld a federal law 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," Justice Taft wrote, referring to the stockyards as "great national public utilities."
New Deal
The clause was the subject of conflict between the U.S. Supreme Court and the Administration of Franklin D. Roosevelt in 1935-37 when the Court struck down several of the President's "New Deal" measures on the grounds that they encroached upon intrastate matters. After winning the 1936 election by a landslide he proposed a plan to appoint an additional justice for each unretired Justice over 70. Given the age of the current justices this permitted a court of up to 15. Roosevelt claimed that this was not to change the rulings of the Court, but to lessen the load on the older Justices, who he claimed were slowing the Court down.
There was widespread opposition to this plan, but in the end the New Deal did not need it to succeed. 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 upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over unions across the country. 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, stating that growing wheat on one's own land for one's own consumption affected interstate commerce, and therefore under the Commerce Clause could be federally regulated.
Civil rights
The wide interpretation of the scope of the commerce clause continued following the passing of the Civil Rights Act, 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 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 government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.
Present day
In 1995, Justice William H. Rehnquist, delivered the opinion of the Court in United States v. Lopez (later clarified by United States v. Morrison). There, the Court ruled that Congress only had the power to regulate:
- the channels of commerce,
- the instrumentalities of commerce, and
- action that substantially affects interstate commerce
Thus the government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools which had been banned by the law at issue. It was the first time since the conflict with President Franklin Roosevelt in 1936-37 that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress's commerce power. Justice Thomas argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation.
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 labelled the Rehnquist Court's commerce clause cases as a doctrine of "new federalism", breathing new life into the Constitution's limits on federal power (q.v. Constitution in Exile). However, the outer limits of that doctrine were delineated by Gonzales v. Raich, in which Justices Scalia and Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana, over dissents from Justices O'Connor and Thomas, on commerce clause grounds.
See also
External links
- David Morris, AlterNet, June 15, 2005, The Sainted Clause