Congressional Powers - Constitutional Analysis

In Dagenhart, the Court held that Congress exceeded its commerce power by prohibiting interstate transportation of products from factories that used child labor. “The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control he States in their exercise of the police power over local trade and manufacture.” “To sustain this statute would sanction an invasion by the federal power of the control of a matter purely local in its character.” Holmes, J., dissented: “I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.”

In Darby, the Court upheld the Fair Labor Standards Act against a commerce clause challenge. The Act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. The Court acknowledged that “manufacture is not itself interstate commerce,” but said that the of such goods was, and hence, Congress was within its regulatory power. Further, even if the motive or purpose was the regulation of wages and hours, not the regulation of commerce, this was irrelevant. “The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. Whatever their motive or purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.” Finally, the Court addressed the Tenth Amendment: this Amendment “is but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than a declaratory relationship between the national and state governments.”

In Wickard, the Court upheld a penalty imposed on Filburn for growing 239 bushels of wheat in excess of his marketing allotment. The Court noted that the Act extended federal regulation to production not intended in any part for commerce but wholly for personal consumption. The Court held that “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce,” when aggregated with the activities of others similarly situated. Further, the Court noted that “home-grown wheat … competes with wheat in commerce” because an individual who could grow his own wheat would not purchase it in commerce. Further: “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” This later statement is impossible to square with Roberts, C.J.’s opinion in Sebelius, and must be considered overruled.

In Lopez, the Court declared unconstitutional the Gun-Free School Zones Act, which made it a federal crime to have a gun within 1,000 feet of a school. The Court indicated that three categories exist for federal regulation under the Commerce Power: Congress may regulate (1) the channels of interstate commerce (including, e.g., hotels and restaurants used by travellers, citing to Heart of Atlanta Motel); (2) the instrumentalities of interstate commerce (including persons and things in interstate commerce); and (3) those activities that substantially affect interstate commerce. The Court found that the relationship to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of Congress’ “substantial affects” commerce power. The Court acknowledged that some nexus to commerce existed, but argued that “depending on the level of generality, any activity can be looked upon as commercial.”

In Morrison, the Court held that the civil damages provision of the Violence Against Women Act was unconstitutional as exceeding the scope of the Commerce Clause. The Court concluded that gender-motivated crimes of violence were in no sense economic activity, and warned that, if accepted, the Government’s theory would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime had a substantial effect on employment, production, transit, or consumption, allowing Congress to regulate all violent crime in the United States. “We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregated effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.”

Souter, J., dissented. He argued that Congress, by passing legislation, had indicated its conclusion that the facts supported its exercise of the commerce power, and that this determination should be subject to nothing more stringent than rational basis scrutiny. Souter argued that in light of the lengthy legislative history of VAWA – in which Congress laid out substantial evidence that violence against women, when looked at cumulatively across the country, had a substantial effect on interstate commerce – it was clear that Congress had a rational basis for considering VAWA to be justified as an exercise of the commerce power.

In Raich, the Court held that Congress could constitutionally prohibit the cultivation and possession of small amounts of marijuana for medicinal purposes. The Court relied on Wickard to conclude that, when aggregated, the cultivation of marijuana for medical purposes had a substantial effect on interstate commerce: “Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

Stevens, J., writing for the Court, offered interesting dicta on the issue of hybrid rights and the potential for additivity between individual rights interests and federalism interests. Cf. Massachusetts v. HHS. “If … the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the outer limits of Congress’ Commerce Clause authority, it must also be true that such personal use … is also beyond the outer limits, whether or not a State elects to authorize or even regulate such use.”

Scalia, J., concurred in the judgment and emphasized that Congress has the power, pursuant to the necessary and proper clause, to control intrastate production of goods that are of a type that could end up in interstate commerce. “That simple possession of drugs is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating illegal substances from interstate commerce. That the CSA regulates an area typically left to state regulation is not enough to render federal regulation an inappropriate means.”

In Sebelius, Roberts, C.J., concluded that the ACA’s individual mandate could not be sustained under the commerce clause because it compelled commercial activity, rather than regulating existing commercial activity. “The power to regulate commerce presupposes the existence of commercial activity to be regulated.”

It seems clear that, after Darby, the motive of a commercial regulation is irrelevant; Congress need not have an economic motive for regulating, so long as it targets economic activity in its regulation [Note that this cannot be squared with McCulloch’s insistence that judicial intervention could be justified where “congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to it,” which seems to resonate with Hammer v. Dagenhart]. The converse appears to be true as well, after Sebelius: Even a regulation that is clearly designed to promote commerce (like the ACA) will not be upheld under the Commerce Clause if it does not target economic activity. [Note that this cannot be squared with McCulloch’s insistence that Congress may use any means which are appropriate and not prohibited by the letter and spirit of the constitution in pursuing an end that is entrusted to it]. Thus, judicial scrutiny under the Commerce Clause is almost exclusively means-focused. This is an interesting contrast to, e.g., the First Amendment, which is almost exclusively ends-focused: Even a regulation that employees means totally unrelated to any expressive instrument (e.g., an economic subsidy, see Arizona Free Enterprise Club v. Bennett) can be overturned if it is directed at an impermissible end.

In West Lynn Creamery, the Court dealt with a Massachusetts statute that imposed a tax on all milk dealers, but used the funds from the tax to subsidize in-state dairy farmers. The Court found that the law was unconstitutional because its impact was the same as a discriminatory tax law, even though it was framed in a facially neutral way. The...