The Commerce Clause is the bane of my existence: Shortly it will be yours, too. As you will see, almost everything the federal government does is through the commerce clause, and the interpretation of it has essentially granted the federal government a police power, which the Constitution explicitly did not grant to the feds, leaving it for the states.
The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes, Article I, Section 8, clause 3.
Greatest Mis-Use of Power
Since the Great Depression and the drastic change the Supreme Court took in interpreting the Commerce Clause, most of the actions that Congress takes in regulating anything come by use of the Commerce Clause.
The first major case which interpreted the Commerce Clause was Gibbons v. Ogden, 22 U.S. 1 (1824). Gibbons had been granted a federal license to operate in waters from New Jersey to New York while Ogden had purchased the same rights from Robert Livingston and Robert Fulton (who had invented the fastest steamboat) who had been granted the license by the state of New York. The Supreme Court held unanimously that the waters were entirely under the purview of Congress as a mode of interstate commerce and states had no right to regulate them. However, the court was specific in what it considered commerce including traffic, navigation, systems of barter, and buying and selling between states. To be interstate commerce, it had to involve more than one state or leave a leave, including foreign countries. For over a century, this was the rule for when Congress could regulate commerce. The focus was put on the movement of goods between states. However, over a century later in the wake of the Great Depression and FDR’s New Deal reforms, the Court undertook a drastic change in what it would consider interstate ‘commerce,’ setting the stage for a tidal wave of congressional action in areas that went well beyond the movement of goods between states.
Much of this change was fueled by the rising labor movements and the change of the economy from an agrarian, local, and goods-based market to an industrial, national, and service based economy. Part of the New Deal was the formation of the National Labor Relations Board which was tasked with enforcing fair labor policies and preventing companies from discriminating against workers that conducted union activities. This is all came to a head in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) when a lower court dismissed an action by the NLRB against Jones & Laughlin for firing ten employees that conducted union activities because the federal government did not have the power to regulate this type of activity because it did not involve commerce or go “interstate” in anyway. The Supreme Court unanimously disagreed, holding that Congress did have the right to regulate these unfair labor practices, noting that the purpose of the NLRB was to regulate activities that “affect” commerce, including the unionization of workers. The Court took this purpose and ran with it. Applying the requirement of ‘interstate,’ the Court noted that Jones & Laughlin was the fourth largest steel producer in the United States, having employees not in just Pennsylvania, but also Michigan, Minnesota, Ohio, West Virginia, Illinois, Tennessee, Louisiana, and New York. Additionally, each of these operations were not localized, but were all interconnected, meaning that some form of commerce was taking place between all of these states. Thus, the Court extended ‘commerce’ to include more than just the movement of goods, but also the movement of product to make the final goods and the “substantial effect” that punishing labor practice in one location could have on labor practices in another company location, creating the substantial effect test of the commerce clause.
The Supreme Court did not stop there with activities among the states. In United States v Darby, 312 U.S. 100 (1941), the Supreme Court upheld an absolute bar on the interstate commerce of companies who refused to either pay workers minimum wage or required workers to work over certain weekly hours, therefore preventing the goods from ever being in ‘commerce’ or going ‘interstate.’ The court held that the ability to regulate interstate commerce was also the ability to prevent it from becoming interstate commerce, extending the power of Congress to prohibit the transportation of noxious articles, stolen articles, kidnapped persons, liquor, and goods made by convicts. Just as these goods are “injurious to the public health,” so to are improper labor practices which Congress is trying to outlaw and therefore subject to the Commerce Clause as commerce despite not going interstate.
In one of the most famous Supreme Court cases of all time and a decision that draws ire among scholars for its far-reaching results, the Supreme Court reached the logical end of its far sweeping changes as it radicalized the Commerce Clause in less than a decade of jurisprudence. In the decade following the Dust Bowl where farmers had rapidly deprived the soil of nutrients to feed the world during the First World War, only to be forced to burn the wheat as worthless despite millions going hungry daily during the early years of the Great Depression, Congress, through the Agricultural Adjustments Acts, began to regulate the amount of a crop that could be planted in a given year. In stepped a small farmer from Montgomery County, Ohio. In Wickard v. Fillburn, 317 U.S. 111 (1941), Filburn harvested 23 acres of wheat from his farm despite his government allotment being only 11.9 acres. Filburn sold some of the excess wheat to local farms but kept the rest for himself to feed his animals and in preparation to seed for the next planting season. In response, the Secretary of Agriculture subjected Filburn to a $117.11 fine.
In the end, the Supreme Court sided with the Secretary. Congress had begun to limit crop yields to prevent excess crops as the world had seen in the decade following the Great War. Filburn opting to harvest his own had the potential to upset that limited yield, even if it was only a small amount and it was kept local. Filburn would, as a result, not buy wheat to feed his animals, inflating the available wheat and upsetting the estimated market. If every local farmer started to do the same as Filburn, soon there would be no one to buy the wheat that was at market because every farmer would have their own personal supply, plunging America back into the dust bowl. In short, if Congress was regulating any effect on any market, it had the right to do so because the small-time farmer in Ohio could have an effect on the big scale farmer in Nebraska, and the regulation on the market as a whole.
Even the Civil Rights Acts are supported not by the 14th Amendment which granted Congress power to use appropriate measures to enforce it, but rather by the Commerce Clause. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, the court forced the integration of a downtown Atlanta hotel because refusal of blacks had the effect of causing blacks to not travel between the states, hurting the economy of Georgia by depriving the state of the hard earned dollars of black travelers across the country and harming interstate commerce. To enhance this argument, the Court noted the existence of a travel guide for blacks which listed hotels which would allow them to stay, but travelers often finding them full upon arrival due to the amount of travel and limited places to stay for blacks.
The Supreme Court extended similar logic in Katzenbach v. McClung Sr. & McClung Jr., 379 U.S. 294, commonly referred to as “Ollie’s Barbecue” case. In this case, the barbecue joint in Birmingham refused to seat blacks but would be willing to serve them take-out service. The Court allowed the Civil Rights Act to enforce integration by noting that over $70k of product used at the restaurant traveled interstate. Were blacks forced to be seated, business would increase and the amount of product going interstate would increase. By refusing to do so, the restaurant was inhibiting interstate commerce and the Civil Rights Act worked to right this inhibition.
This line of Commerce Clause jurisprudence would meet its logical conclusion in Gonzalez v. Raich, 545 U.S. 1 (2005). Whereas Filburn had sold some of his wheat to others in his area, Raich grew marijuana plants for herself as part of her medical marijuana card that the state of California had given her to ease the pain of a terminal illness. Despite this absolute localness to only a single home, the Supreme Court upheld the right of the DEA to prosecute her for possession of marijuana in the future. This was based on the logic that Congress had eliminated any legal market for marijuana by outlawing the drug, and allowing a localized market would legalize a market for marijuana, making the enforcement of such a law extremely difficult were individual growers permitted.
Beginning in 2005, however, the make-up of the court had changed drastically, and Raich received sharp dissenting opinions from both Justice O’Connor joined by Chief Justice Rehnquist and another by Justice Thomas. O’Connor focused on her perceived slight of the Tenth Amendment by the majority. Meanwhile, Thomas, as he often does, pushed back on over eighty years of Commerce Clause decisions, focusing especially on Wickard v. Filburn and its sharp departure from the original intent, meaning, and interpretation of the Commerce Clause all the way back in Gibbons v. Ogden, arguing that if Congress could regulate the home growth and consumption of marijuana, it could regulate anything under the Commerce Clause.
Raich may leave you thinking that the bounds of the Commerce Clause are limitless. However, two cases from 1995 and 2000 worked to finally limit Congress’s Commerce Clause powers. In the 1995 case United States v. Lopez, 514 U.S. 549, the Court struck down the federal offense of possessing a firearm at a place a person knows or reasonably should know is a school zone. 18 U.S.C. § 922(q)(1)(A) (1988 ed.). This offense was based on the premise that the potential violence caused by having a gun at a school harmed the educational process which in turn reduced the quality of education and then had an effect on the quality of commerce throughout the country. The court, headed by Chief Justice Reinquist, found this chain of causation outrageous, noting that the law had absolutely nothing to do with commerce and the legislative history was completely void of any Commerce Clause purpose. The Chief Justice did create the caveat that if the weapon had been placed into interstate commerce, then Congress would have authority to make it a crime (see 18 U.S.C. § 922(eq.)) using the jurisdictional ‘hook’ because Congress, as we have seen, may regulate anything that goes or could go through interstate commerce.
In a similar 2000 case, United States v. Morrison, 529 U.S. 598, the Court struck down a federal civil remedy for “gender motivated violence” (42 U.S.C. § 13981) that victim Brzonkala tried to use against Morrison after he allegedly raped her at Virginia Tech. The Commerce Clause claim by the federal government was based on the same logic in Lopez above but was actually backed by statistics showing the harm of gender violence. Despite this, the Court again found lacking evidence of connection to interstate commerce, rejecting the “costs of crime” and “national productivity” claims by Congress. Morrison at 613. Making note that allowing such a law would amount to a police power exercisable by the federal government, this civil remedy suffered the same fate as the gun law in Lopez. Id. at 618-619.
Tear it Down
Why spend so much time ranting on about the Commerce Clause? As was discussed way back before your eyes glazed over, most of what Congress does comes through the Commerce Clause: the FDA, the EPA, the SEC, and anti-trust law. Congress and the executive bureaucracy are able to touch every corner of our lives because the Court took the regulation of rivers between states and turned it into one person growing marijuana plants in their backyard to relieve personal ailments. It is doubtful that is what Madison and the other members of the Constitutional Convention had in mind when they wrote it down and unlikely what the states had in mind when they ratified the Constitution in 1787. Their inability to be more concise in their wording permitted the federal government to do exactly what Federalists like Alexander Hamilton claimed they would be unable to do due to the long list of enumerated rights. Reigning in the commerce clause interpretation would go a long way in reducing the power of the federal government in our lives.