As discussed in my previous post, the Commerce Clause has changed in meaning and scope over the years since it was written. In order to take the Commerce Clause back to the Original Intent, we would have to repeal the New Deal, Great Society, and a vast amount of federal legislation and regulation that has been put in place over the last 2/3rd’s of the 20th Century.
Constitutional language varies in level of abstraction or generality. Some language is more concrete, and some is less concrete. The original definition of interstate commerce was the buying and selling of goods between states. The definition now includes the power to directly regulate labor, manufacturing, agriculture, and industry. Over the years, the Courts have expanded the Commerce Clause to include all of these activities.
According to Bork and Troy in an Internet article called, “Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce”:
“In generally ascending order of breadth, various writers and Justices have defined “commerce” as:
1. The trafficking and trading of economic commodities
2. The trafficking and trading of economic commodities and the modes of their transportation
3. The trafficking and trading of any kind of commodity and the mode of its transportation
4. The movement of any thing or any person and its mode of transportation
5. Economic activity that substantially or causally impacts on the trafficking, trading, or transportation of commodities
6. Any human activity or other phenomenon that has any ultimate impact on activities in more states than one”
From the time of the Founding, Congress had little reason to address the Commerce Clause for the next century. The Founders did not consider the activities that preceded trade to be part of commerce (manufacturing, agriculture).
Alexander Hamilton, in Federalist 12, states, “”Could that which procures a freer vent for the products of the earth, which is the most powerful instrument in increasing the quantity of money in a state – could that, in fine (commerce), which is the faithful handmaid of labor and industry…”
John Marshall
In 1824, under the John Marshall Court, the case of Gibbons v. Ogden was heard. This case involved a conflict between two steamship companies. The two lines wanted to travel between New York and New Jersey. The question was whether “commerce” included navigation. The court concluded that it did. Chief Justice John Marshall said that the way Congress decides to regulate commerce is completely at the discretion of Congress. This was an opening for a future broader interpretation of this clause.
From 1895 until 1938, the Courts experimented with different opinions of the Commerce Clause. By1938, according to David F. Forte, Professor of Law, Cleveland-Marshall College of Law, the court abandoned any serious role in monitoring Congress’ use of this enumerated power.
According to Bork and Troy, by the end of the 19th Century, the Courts had clarified three key aspects:
1. Although the lines between the state and federal powers remain fuzzy, the Court recognized that some power was concurrent (exist together).
2. In Asper Kidd v. Miln the Court decided that the State regulatory power as it and effects on interstate commerce was broad, but that the State would not be permitted to invade Federal power.
3. The term “commerce” was understood to include buying and selling, but that it did not include pre-commerce production. The pre-commerce production still remained in control of the State.
In 1895, US v. E C Knight Co declared that the Sherman Anti-Trust Act (limits cartels and monopolies) could not apply to monopolies in manufacturing. The case involved sugar production. The Court ruled that the federal government could not become involved in this production because it was local and therefore under exclusive control of the states.
The Court’s definition of manufacturing was stated as, “fashioning raw materials into a change of form for use…the buying and selling and the transportation indicated thereto constitute commerce.”
In 1903, the Court heard the case of Champion v. Ames. This case concerned the shipping of lottery tickets across state lines. The Court upheld the prohibition of the shipment of these tickets not because they were goods, but because they were objects encouraging immorality. This impinged upon the policing power of the States. This was the first example of the Courts prohibiting transportation of goods as well as controlling the exchange.
This was the first time that the Courts blessed Congressional regulation of interstate commerce for reasons that had nothing to do with preserving the free flow of goods and services across state lines.
In 1936, in the case of Carter v. Carter Coal Company, the Court still defined commerce as, “intercourse for the purposes of trade”. The Court decided that the Commerce Clause did not give Congress the power to regulate coal production before it entered into commerce. Other laws at the time were upheld if they had a substantive effect on interstate activity.
Until 1936, the Court decisions were straightforward, for the most part, and there was a distinction between commerce and manufacturing. In 1937, during the Progressive era, there was a change in the understanding of commerce.
In 1937, during the case of NLRB v. Jones and Laughlin Steel Corporation, Justice Cardozi held the more narrow view that commerce power could not reach out to areas that were indirect and remote. However, after his death, the new liberal Court in 1941 embraced an expansive interpretation of the law.
In 1941, in the case of US v. Darby, the Court ruled to uphold the Fair Labor Relations Act of 1936. This law had previously been the responsibility of the States to enforce. The Federal government was now in the role of regulating employment under the Commerce Clause. They prohibited shipments of products by manufacturers who did not comply with the Fair Labor Relations Act.
In 1942, the case of Wichard v. Filburn is considered another true turning point for the Commerce Clause. This case allowed the federal government to regulate economics. In this case, a wheat farmer was fined for growing wheat for his family without penalty. The reasoning of the Court was that growing wheat for his family would interfere with the interstate wheat market.
According to Forte, “By these means, the Court turned the commerce power into the equivalent of a general regulatory power and undid the Framers’ original structure of limited and delegated powers, as also observed by Justice Clarence Thomas in his dissent in Gonzales v. Raich (2005).”
At the close of the 20th Century, cases that were heard in the Rehnquist court were an attempt to expand the Civil Rights Act of 1964.
One example was US v. Lopez, 1995. This case was an attempt to criminalize possession of guns near a school (Gun Free School Zones Act). The Court struck this down because Congress does not have the power to control local school laws and because the action of Lopez did not interfere with interstate commerce.
Justice Rehnquist declared that the “commerce power extends to (1) the use of the channels of interstate commerce; (2) the regulation of instrumentalities of interstate commerce, or person or things in interstate commerce; and (3) a local commercial activity having a substantial relation to interstate commerce. Possessing a gun is not a commercial activity, even though gun violence affects commerce.”
In another example, In the US v. Morrison (2000), the Court struck down the concept that a victim could sue their attacker in a federal court under the Commerce Clause. This was part of the Violence Against Women Act. The Court ruled that non-economic activities cannot be connected to the interstate commerce.
John Roberts
On June 28, 2012, the Court, under Chief Justice John Roberts, ruled on the Affordable Care Act. The question before the court was in constitutionality of the individual mandate. The individual mandate is defined, as “is a requirement by law that certain persons purchase or otherwise obtain a good or service”.
The Court ruled that the mandate was constitutional. Further analysis of the ruling shows that there are two parts to the decision. The question before the Court was whether this mandate is constitutional under the Tax and Spend Clause as well as under the Commerce Clause.
In writing for the majority, Justice Roberts shows that the mandate is indeed a tax. He wrote:
“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing condition – not owning health insurance- that triggers a tax- the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s power to tax.”
He was able, with his opinion on the mandate being constitutional under the Commerce Clause, to push back the overreaching power of Congress regarding the Commerce Clause. He wrote:
“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
The Court refused to buy the government’s sweeping (and over-reaching) interpretation of the Commerce Clause.
And so, the debate over the vast and over-reaching powers of the Congress via the Commerce Clause continues to this day.
References:
Bork and Troy, “Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce”, http://www.constitution.org/lrev/bork-troy.htm
David F. Forte, Professor of Law, Cleveland-Marshall College of Law, http://www.heritage.org
Federalist Papers, Number 12
Online Dictionary
Reclaiming the Shining City 