The Commerce Clause Cases

Marbury v. Madison—(Marshall unan.) Where there is a right there is a remedy. Courts = adjudication, but must not answer political questions. May not give л commission b/c that is a political question. It is emphatically the province of the court to say what the law is. Est. judicial review.Cooper v. Aaron – (unan) SC is the ultimate interpreter of the constitution; state officials unable to nullify FCt. order; 14th Am. Makes © binding on states; judicial exlusiveness rather than judicial authority to interpret. Dickerson v. US—(Rehnquist) SC has supervisory auth. over FCts; Miranda valid despite Congressional act. Dissent Scalia & Thomas—expansion of ©. McCulloch v. MD—(Marshall) “Let the end be legitimate, let it be within the scope of the ©….US Term Limits v. Thornton (Stevens, 1995)—No state can reserve what it never possessed. C to be exclusive source of qualifications for congress. Kennedy (conc.)—“Framers split the atom of sovereignty” National G is an must be controlled by the people without the collateral interference of the states. Thomas (diss.)—C is silent on the issue; states can exercise all powers that the C doesn’t confer to the fed. G.

Gibbons v. Ogden—established narrow view of commerce. Commerce as “intercourse.” Congress may regulate where there is an effect on other states. 1887-1937—court strongly disfavored government regulation of economics. Struck down many statutes as unconstitutional under the commerce clause. United States v. E.C. Knight (sugar refinery cases)—congress can not regulate manufacture; preservation of state autonomy.Addyston Pipe and Steel—price fixing agreement directly related to interstate commerce.Shreveport Rate Case—(1914) Hughes Instruments of commerce :“As it is competent for congress to legislate these ends, unquestionably it may seek their attainment by requiring that the agencies of interstate commerce shall not be used tin such a manner as to cripple, retard, or destroy it.” Substant. effect approach. Swift v. US (1905)– sustaining Sherman Act injunction against meat price fixing: “Commerce among States is not a technical conception, but a practical one, drawn from the course of business.” Stream of commerce theory. Stafford v. Wallace (1922)—stockyards are but a throat through which the current flows. Champion v. Ames (1903)—the lottery case, “The suppression of nuisances injurious to public health or morality is among the most important duties of gov’t…The possible abuse of power is not an argument against its existence.”Fuller dissent: transformation of non-commercial items into commercial because they travel state lines invalidates the 10th amendment.Hipolite Egg v. US (1911)—unanimous court rejected the idea that the eggs were not the subject of interstate commerce once they had passed out of interstate commerce; “outlaws of commerce may be seized wherever found.” To give them immunity would defeat…the provision for their confiscation. Hoke v. US (1913)—McKenna unan. Upholding Mann Act: “The principle established is a simple one, that congress has power over the transportation amoung the united states; that power is complete in itself, and that Congress, incident to it, may adopt no only means necessary but convenient to its exercise, and the means may have the quality of police regulations.” Hamner v. Dagenhart (1916)—Day: “There is no power vested in congress to require states to exercise their police power so as to prevent possible unfair competition…The far reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed. Holmes, McKenna, Brandeis, Clarke diss.: Congress is given power to regulate such commerce on unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. RR Retirement Board v. Alton RR (1935)—5-4 J. Roberts—RRA was not in purpose or effect a regulation of interstate commerce within the meaning of the constitution. Schechter Poultry Corp. v. United States (1935)—Hughes: rejects notion that poultry provisions relate to the stream of commerce (Swift) or affect commerce (Shreveport). Cardozo (conc.)—to find immediacy and directness here is to find it almost everywhere; activities local in their immediacy do not become interstate and national because of distant repercussions.Carter v. Carter Coal—(1936) incidents leading up to and culminating in the mining of coal do not constitute intercourse. Production is merely a local activity. Direct vs. indirect effects on interstate commerce. Cardozo diss.: direct and indirect must not be read too narrowly. NLRB v. Jones & Laughlin (5-4; 1937)—the power to regulate commerce is the power to enact all appropriate legislation for its protection and advancement…the power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it. “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress can not be denied the power to exercise that control. McReynolds (diss.)—by this chain of indirect and progressively remote events we finally reach the evil with which it is said the legislation under consideration undertakes to deal. US v. Darby (Stone, 1941)—lumber manufacturer in violation of FLSA; competition by a small part may affect the whole and that the total effect of the competition of many small producers may be great. Our conclusion is unaffected by the tenth amendment which states by a truism…There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between state and ntn’l gov’t. Overrules Hamners production distinction. Wickard v. Filburn (Jackson, 1942)—Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be production nor can consideration of its economic effects be foreclosed by calling them indirect. Rejects indirect and direct categorization in favor of substantial effect formulation.Hodel v. Virginia Surface Mining (Marshall, 1981)—When congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational. Renq. Diss. Some activities may be so private or local in nature that the simply may not be in commerce. Our cases have consistently held that regulated activity must have a substantial effect on interstate commerce. Heart of Atlanta Motel v. US (Clark, 1964)—“That congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid…the power of congress to promote interstate commerce also includes the power to regulate local incidents thereof, including the local activities in both the states of origin and destination, which might have substantial and harmful effect upon that commerce.”Katzenbach v. McClung (Clark, 1964)—Ollie’s BBQ; upholds rational basis review in determining that Congress validly applied Title II to the restaurant. Black (conc.)—“not every remote, possible, speculative effect on commerce should be accepted as an adequate c’l ground to uproot and throw into the discard all our traditional distinctions between what is purely local and what affects the national interest. Douglas (conc.)—wants reliance on 14th amend. in decision. Goldberg (conc.)—finds rationale under 14th and 5th amends. Perez v. US (Douglas, 1971)—loan sharking case; although extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce. Stewart (diss.)-sees no further relation to commerce than all other crime. US v. Lopez (Rehn, 1995)—Guns free school act exceeds the commerce clause power of congress. Areas that congress may regulate: (1) channels of interstate commerce (Darby, Heart of Atlanta); (2) instrumentalities of commerce (Shreveport); (3) substantial relation to commerce (Jones & Laughlin). We conclude that the proper test…is whether the regulated activity substantially affects interstate commerce. “Legal uncertainty” in commerce clause cases, making congressional power a question of “degree.” “To uphold G’s contentions here we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the commerce clause to general police power of the sort retained by the states…To do so would require us to conclude that the c’s enumeration of powers does not presuppose something not enumerated, and that there will never be a distinction between what is truly national and what is local. Kennedy (conc.)—“Were the federal G to take over the regulation of entire areas of traditional state concern…the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. The resultant inability to hold either branch of government answerable to the citizens is more dangerous than devolving too much authority to the remote central power. Thomas (conc.)—substantial effects test an innovation of the 20th c. Bryer (diss.)—prefers rational basis approach to substantial effect doctrine. Rejects majority’s distinction between commercial and non-commercial activities. US v. Morrison (Rehn, 2000)—adopts the reasoning of Lopez; “Indeed we can think if no better example of the police power, which the Founders denied the N’l G and reposed in the States, than the suppression of violent crime and vindication of its victims. Thomas (conc.)—substantial effects doctrine inconsistent with original understanding of congressional power; Souter (diss.)—info regarding effect of violence against women on interstate commerce available (dist. from Lopez).

Other Powers of Congress

Child Labor Tax Case (Bailey v. Drexel, Taft, 1922)—post-Hamner adoption of tax penalty on child labor. Prohibitory and regulatory effect and purpose are palpable…the presumption of validity can not prevail. The primary motive of a tax must be generating revenue. But there comes a time in the extension of the penalizing feature of the so-called tax when it loses its character as such and becomes a mere penalty. United States v. Kahriger (Reed, 1953)—wager tax upheld; A federal tax does not cease to be valid merely because it discourages or deters activities…nor is it invalid because the revenue obtained is negligible. Frankfurter dissents. Jackson concurs. US v. Butler (Roberts, 1936)—invalidated subsidizing farmers to reduce their productive acreage. “It results that the power of congress to authorize the expenditure of public moneys for public purpose is not limited by the direct grants of legislative power found in the constitution. Stone (diss.)—Statute not coercive; legitimate means to an end; favors judicial restraint. Charles Steward Machine Co v. Davis (Cardozo, 1937)—federal tax with credit to those who contribute to state unemployment is valid. Helvering v. Davis (Cardozo 1937)—discretion given to congress to levy tax on workers to pay old age benefits. SD v. Dole (Rehn, 1987)—withholding of 5% fed highway funds to states allowing EtOH use under 21 valid as spending in pursuit of the general welfare because it is not coercive. O’Conner (diss.)—drinking age not sufficiently related to fed. Highway funds. Need some way to limit spending power. War Power. Woods v. Cloyd W. Miller Co, (Douglas, 1948)—Whatever may be the consequence when war is officially terminated, the war power is not necessarily terminated; upholds post war rent controls when war contributed to housing deficit. Jackson (conc.)—war powers usually invoked in haste and should be scrutinized with care Missouri v. Holland (Holmes, 1920)—upholds treaty re: migratory birds; treaty supreme law of the land; statutes under it must also be supreme.

State Limits on Federal Power

National League of Cities v. Usery (Rehn, 1976)—state autonomy defense enough to invalidate applicaton of FLSA against the states overruling MD v. Wirtz. Impermissibly interferes with state functions. 3 part test: statute regulates state as states, addresses matters that are attributes of state sovereignty, and compliance would directly impair ability to structure State G fcns. Brennan (diss.)—congl restraint should be political not judicial. Garcia v. San Antonio MTA (5/4, Blackmun, 1985)—federalism adequately protected through political process. C’l app. of FLSA to MTA. O’Conner (diss.)—fed. diminished to weak essence. True essence is states have legit. interests which bind the fed. G. suggests balancing test between state auton. Vs congressional means. Usery balancing test is unworkable in practice. Rehn diss.—I’ll be back. New York v. US (O’Connor 1992)—radioactive waste; Accountability is thus diminished when due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation. States are not mere political subdivisions of the US. White (diss.)—states chose to adopt the regulation; Stevens (diss./conc.)—10th amendment doesn’t prohibit congress from commanding states under Art. I. Printz v. US (5/4; Scalia, 1997)—textual and historical approach to Brady Bill. Return to pre-Garcia. Congress can’t impose duties on the states without their consent. O’Conner (conc.)—some actions may be provided for under the commerce clause. Thomas (conc.)—second amendment places the burden on the federal government. Stevens (diss.)—pressing need outweighs state concerns. Reno v. Condon—(Rehn, unan, 2000)-drivers priv. protect. Act C’l—no affirmative mandate

Civil Rights Power

US v. Guest (Stewart, 1966)—reversal of dismissal of conspiracy to deprive blacks of free exercise of rights. Suggestion that under the N&P clause of the 14th amend. Congress may enact leg. to reach private actors. Commerce clause—conspiracy may prevent interstate movement. “But if the predominant purpose of the conspiracy is to impede or prevent the exercise of the right of interstate travel, or to oppress a person because of his exercise of that right, the conspiracy becomes the proper object of the federal law under which the indictment in this case was brought.” Clark (conc.)—there can be no doubt that the specific language of §5 empowers congress to enact laws punishing all conspiracies…that interfere with 14th Amend. rights. Harlan (conc./diss.) Brennan (conc/diss.)—And I can find no principle of federalism nor word of the C. that denies congress power to determine that in order to adequately protect the right to equal utilization of state facilities, it is also appropriate to punish other individual…who engage in the same brutal conduct for the same misguided purpose. Jones v. Alfred Mayer (Stewart, 1968)—refusal to sell home to blacks; when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. Harlan (diss.)—there is an inherent ambiguity in the term right.

Voting Rights

SC v. Katzenbach (Warren, 1966)—case by case litigation in voting discrimination cases difficult. Congress entitled to pass law dealing with the problems—may use any rational means necessary. “The record here showed that…various test and devices have been instituted with the purpose of disenfranchising negroes, have been framed in such a way as to facilitate this aim, and have been administered in a discriminatory fashion for many years. Under these circumstance, the 15th amend. has clearly been violated. Lassiter v. NorthamptonCounty Election Bd. (Douglas, 1959)—unan. Rejection of attack on literacy test voting requirement. Literacy and illiteracy are neutral on race, creed, color, and sex…Of course a literacy test, fair on its face, may be employed to perpetuate discrimination which the 15th amend. was designed to uproot. No such influence is charged here. Katzenbach v. Morgan (Brennan, 1966)—Ratchet test: congressional deference in equal protection cases necessarily gives congress power to abridge as well as expand rights. Challenge to NY voting laws prohib. PR who didn’t speak English from voting. Expansive prophylacticly and substantively. “…it was congress’ prerogative to weigh these competing considerations…we are guided by the familiar principle that reform may take one step at a time.” Harlan (diss.)—feels NY literacy requirement is rationally related to voting rights. State and congressional enactments should be given the same presumption of validity. “[I]t should be recognized that the 14th amened. Is a brooding omnipresence over al state legislation, the substantive matters which it touches are all within the primary legislative competence of the states.” Oregon v. Mitchell (Black, 1970)—no person over 18 denied vote. “No function is more essential to the separate and independent existence of the states than the power to determine within the limits of the constitution the qualification of power to determine within the limits of the C the qualifications of their own voters for state, county, and municipal offices.” Brennan (diss. in part)—“If discrimination is unnecessary to promote any legitimate state interest, it is plainly unconstitutional under equal protection, and Congress has ample power to forbid it under §5.” Stewart (diss.)—age is not protected class as race is, and therefore the statute did not invidiously violate rights. Harlan (conc./diss.)—congress has exceeded its powers and substituted its judgment for the states. Rome v. US (Marshall, 1980)—pre-clearance required to make electoral changes; ban on electoral changes had the purpose and effect of promoting the 15th amend. Powell diss.—pre-clearance like any other remedial device can only be imposed in response to harm. Rehn (diss.)—today’s decision is nothing less than a total abdication of authority, rather than an exercise of deference…the intrusion is all the more offensive to our constitutional system when it is recognized that the only values fostered are debatable assumptions about political theory which should be properly left to the local democratic process.