THE COMMERCE CLAUSE
Chapter Objectives
• Understand why and how the Commerce
Clause is used by Congress to augment
its power and justify the laws that it
passes.
• Trace the development of the Commerce
Clause.
• Examine the power and limitations that the
states possess under the Dormant
Commerce Clause.
THE COMMERCE POWER
• Prior to 1824 the Congress of the United States
was powerless to pass certain laws because
they are bound by the enumerated powers of the
constitution.
• So they were frustrated because there were
many problems in the different state which they
could not address and the state governments
didn’t want to address.
• As you know the powers are divided between
enumerated and police powers.
THE COMMERCE POWER
• So in order to address some of these
problems in the states the Congress used
the Commerce Clause.
• What is the Commerce Clause?
• Article I Section 8 Clause 3 of the
Constitution states: Congress shall have
the power to “regulate commerce with
foreign nations, and among the several
states and with the Indian Tribes.”
THE COMMERCE POWER
• This is a very confusing clause although I
don’t find it that confusing.
• The only thing confusing about the
Commerce Clause is it’s the inconsistent
interpretations given by the Supreme
Court over the last 100 years.
THE COMMERCE POWER
• There are three historical phases to the
Commerce Clause.
• Phase l-1824
• In 1824 the Gibbons v. Ogden, 22 U.S. 1
(1824), was decided.
• What did this case stand for?
THE COMMERCE POWER
• Well the Court found that Congress had
extensive power under the Commerce Clause.
That Congress could pass laws on commerce
crossing state lines. The Court stated that
commerce power is a complete power to be
exercised by Congress to its full extent.
• So if Congress has power to regulate interstate
commerce does it have the power to regulate
intrastate commerce?
THE COMMERCE POWER
• Phase II –1880-1930
• In this phase the Court continued to be
inconsistent with their interpretations of the
Commerce Clause.
• The Court stated the basic theory that Congress
could regulate “interstate commerce” not
“commerce” Congress at that time had passed
laws that regulated wages, prices and working
conditions the Court struck these down.
• Why?
THE COMMERCE POWER
• The Court said that these laws only had an
indirect effect on interstate commerce
therefore they were not with in the purview
of their powers. See United States v.
Knight, 156 U.S. 1 (1895).
• Even if it meant that even though the
sugar company controlled 90% of the
market it could not regulate pricing.
(sounds like a monopoly to me)
THE COMMERCE POWER
• Phase III 1880-1930s
• Why do we see the same years?
• Because the decisions evolved during the years
and overlapped each other.
• During these years congress passed laws that
prohibited the transportation of prostitutes and
contaminated food over state lines, this was
constitutional because it was a prohibition of
goods directly involving interstate commerce.
THE COMMERCE POWER
• What was not Constitutional was prohibiting the
transportation of goods made by children over state
lines. The goods were not suspect what was wrong was
the child labor making them. In the Courts mind
Congress needed to pass laws against child labor
instead.
• Congress passed another law that regulated intrastate
activity. The Court said that if the law passed was
regulating a thing that was “in the stream of interstate
commerce” it could be regulated. Shreveport Rate case
234 U.S. 342 (1914).
• With this opinion Congress could regulate anything! With
in or out of State.
THE COMMERCE POWER
• Phase IV 1930s-1995
• Note here that this was the Depression Era.
• Here is where interpretation of the Commerce
Clause began to become more consistent.
• New Supreme Court Justices were appointed by
Franklin Roosevelt new way of thinking.
• The court started to follow a line theory of
consistent criteria to determine if the law passed
by congress was within their powers under the
Commerce Clause.
• What was this new line of theory?
THE COMMERCE POWER
• They set a criteria said that if the law “affects”
interstate commerce then it was constitutional.
• “if the activity covered by the federal statute
“affects interstate commerce. Congress can
regulate it.” again with this theory congress can
pass any law under the commerce clause.
• In the Wickard v. Filburn case what did the court
reconcile the statute being Constitutional?
• This is how Congress passed the Civil Rights
Act of 1964.
THE COMMERCE POWER
• How did they do that under the Commerce
Clause?
• Public v. Private Discrimination? What is
this?
• This was the only way that the Congress
could stop Private discrimination.
• Here the problem of Intrastate v. Interstate
Commerce was solved. Again with the
Necessary and Proper Clause.
THE COMMERCE POWER
• Phase V 1995 – Present
• Again we go back to the Lopez case.
• Possession of a firearm within 1000 feet of
a school.
• Here is where the Court started putting the
brakes on Congress and distinguishing the
power of Congress and the Police Power
of the States.
• How did they do that?
THE COMMERCE POWER
• Well in this case they came up with a new theory
to curtail Congress’ power. What was the
theory?
• The “Substantial Affect” test.
• What is the substantial affect test?
• Well the court in this case said that if this law
were to be upheld without a “substantial affect”
on interstate commerce this would “…convert
congressional authority under the Commerce
clause to a general police power of the sort
retained by the States.”
THE COMMERCE POWER
• The court provided guidance in
understanding the Commerce Clause by
identifying three categories of activity that
Congress can regulate under its power.
What did they say?
• First: Congress may regulate the use of
the channels of interstate commerce.
THE COMMERCE POWER
• Second: Congress can regulate and
protect the instrumentalities of interstate
commerce, or persons or things in
interstate commerce, even though the
treat may come only from intrastate
activities.
• Third: Congress in phase V can regulate
those activities having a “substantial
affect” on interstate commerce.
THE COMMERCE POWER
• United States v. Morrison what was the
case about?
• Congress passed a law that it allowed a
federal suit in federal court for victims of
gender-motivated violence under the
commerce clause because it affected it.
• Why did the court strike down the statute?
• Because it did not “substantially affect
“interstate commerce and it infringed on
the States Police Powers.
The Dormant Commerce
Clause
• What in the world is a Dormant Commerce
Clause?
• If there were a federal law that conflicted
with a state law federalism would prevail!
• What if there is a state law that did not
conflict with a federal law concerning the
Commerce Clause who prevails?
• Why?
Application of the Dormant
Commerce Clause
• First: States exercising police power can
pass laws that deal with interstate
commerce.
• Second: if a State does pass a law dealing
with interstate commerce, that law could
be challenged in court as a violation of the
Commerce Clause.
• Third: how will a court decide if the state
law at issue does violate the Commerce
Claus?
Application of the Dormant
Commerce Clause
• First: if the state law passed for what the court sees as a
legitimate health and safety reason and does not
discriminate against other states.
• Second: if a state law is passed for what the Court sees
as an illegitimate reason, the law will be struck down.
• Third: the State law is upheld if the State can justify the
law with facts and statistics to show that it is a true
health or safety measure that does not overly burden the
free flow of interstate commerce. Minnesota v. Clover
Leaf Creamery Co.
• Minnesota banned the retail sale of milk in plastic
containers but allowed the sale of milk in paper
containers.
Application of the Dormant
Commerce Clause
• The Court upheld the law as serving a
legitimate state interest. It did not overly
burden the free flow of interstate
commerce.
• This last point proofs the importance of
evidence in a trial.
THE END