Congressional Powers And Federalism - Constitutional Law: Fourteenth Amendment, Separation of Powers

Congressional Powers and Federalism

I: Commerce

Early: Gibbons (First) -> Hammer (Narrow) -> Wickard (expansive)

Late 19^th Century until 1937: Narrow CC.

1937 – 1995: Rubber Stamp of Congress

1995 – 2000: Lopez and Morrison: Guns and VAWA invalidated.

2012: NFIB

Early Commerce Clause Cases: What Happened from EC Knight -> Wickard?

• PROF: Consider but reject David Strauss’ common law method of constitutional interpretation.

• Different tests applied:

  • Direct/Indirect

  • Production v. Commerce

  • When Interstate Commerce Stars/Ends (Schecter)

• Tests eroded over time (Shreveport Rate: Glimpse of world to come).

Gibbons v. Ogden (1824)

• Last of CJ Marshall’s important decisions.

• Steamboat monopoly between NY and NJ.

• NY law invalidated under Commerce Clause, because Congress has power to regulate interstate commerce.

US v. EC Knight (1895)

• Sugar Monopoly – Sherman Antitrust Act not apply to CC

• Manufacturing sugar not commerce.

• Harlan Dissent: Look at effects; broader conception of commerce.

Champion v. Ames (1903)

• Shipping international lottery tickets across state lines CAN be regulated by CC.

• (Goods are dangerous, not the method of their manufacture)

Shreveport Rate Cases (1914)

• Regulating rates of transportation internal to Texas not a violation of Commerce Clause – intertwined!

• How to reconcile with EC Knight and Hammer?

  • Still regulating commerce, not production.

  • Industries: Cotton or Sugar manufacturing local; Railroad transportation feels more like interstate commerce

Hammer v. Dagenhart (1918)

• Federal law prohibits goods produced by child labor. CC the only hook able to justify the law?

• Justice Day: The interstate commerce involves transportation; the production is entirely intrastate. Invasion by federal government of a purely local matter.

  • (Contrast with the lottery, liquor, prostitution cases..)

• Holmes Dissents: Evil of child labor. Manufacturing part of commerce. Not requiring the state to do anything.

• Overruled in US v. Darby Lumber (1941)

Schechter Poultry v. US (1935)

• National Industrial Recovery Act (NIRA) unconstitutional because regulating safety of chickens in Slaughterhouse not interstate commerce.

• The flow of Interstate Commerce had ceased.

• Note: Old distinctions beginning to erode. Direct/indirect on its last les.

Carter v. Carter Coal (1936)

• Replay of EC Knight – Bituminous Coal Act replaced NIRA, trying to regulate mining industry.

• 5-4, Sutherland: Mining isn’t commerce. Like manufacturing. “Every journey to a forbidden end begins with the first step.”

• Cardozo Dissent: direct effect on interstate commerce

• (Compare to Wickard: Direct opposite regarding aggregation principle. Carter rejects aggregation principle)

[West Coast Hotel v. Parrish (1937)

• Roberts’ switch in time…

• Upholding Washington State’s minimum wage law, overturning Adkins v. Children’s Hospital (1923), and end of Lochner era.]

NLRB v. Jones & Laughlin Steel (1937)

• Wagner Act (union/labor regulation) can be applied in this case to this company.

• J&L a massive multi-state corporation. “Close and substantial relation to interstate commerce”

US v. Darby Lumber (1941)

• Minimum wage law.

• Last nail in the coffin of Commerce/Manufacture Distinction

  • Over Rule Hammer; Limited the application of Carter Coal

  • Does not say whether Hammer was wrongly decided on Day 1.

  • Instead, recent cases were unpleasant, returning to old doctrine.

Wickard v. Filburn (1942): Expansive conception of commerce

• Why the change?

  • Dynamism of American constitutionalism.

  • Is it a change attributable to what commerce is changing, or change in perception of federalism?

• Quota on wheat production; farmer grows for self/livestock.

• Change: Aggregation Principle. Combination of lots of trivial amounts affects economy.

• Rejects “production” or “direct/indirect” tests.

• (Could Wickard and Hammer be reconciled? Different markets…)

* * *

Civil Rights Cases (1883)

• Statute: Civil Rights Act of 1875, full and equal enjoyment of public accommodations.

• Question: Does 13/14A provide authority for this act? Did it reconfigure balance of power between state and fed gov’t?

  • 14A § 5: Congress has power to enforce (also 13A §2)

  • Unless state action, federal government not have power to regulate

  • 14A not speak to private actors. 13A does, but not implicated here.

    • [PROF: could 13A have been stretched to include, given how far 14A is stretched?]

• [Note: Not CC case here, but used to justify later]

Congress withdraws from protecting civil rights from violations by private actors until after WWII.

Possible constitutional basis for invalidating Civil Rights Act?

• 1A Freedom of Assembly and association

• 5A property right – taking without just compensation

• 14A EP: treating motel differently (treating racists differently?)

• 13A: Involuntary servitude.

Heart of Atlanta Motel v. US (1964)

• 75% of guests are out of state, and advertise out of state.

• Compare with Hammer (child labor)

  • Is Production/Services interstate commerce?

  • Morality – but in very different times.

• Commerce Clause gives power to regulate hotel that affects interstate travelers, etc.

Katzenbach v. McClung (Ollie’s BBQ) (1964)

• Half of food purchased originated out-of-state

• While this restaurant has virtually no effect on interstate commerce, racial discrimination in restaurants in general does (aggregation principle – see Wickard, Gibbons, Darby).

• Rational Basis scrutiny: “but when we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary for the protection of commerce, our investigation is at an end.”

Question: Why CC not 14A here? Good to have unanimity?

* * *

[Garcia v. San Antonio Metropolitan Transit Authority (1985)

• Overrules Nat’l League of Cities – Commerce Clause prevails.

• (Can apply FLSA to states). Procedural safeguard is the states/federalism.

• Dissents:

  • Powell not trust federal gov’t. Proximity matters for lawmakers. Local more effective.

  • Rehnquist: 10A will rise again.]

US v. Lopez (1995)

• Limiting use of Commerce Clause. First time since 1937; 5-4.

• Facts: Outlaw guns within 1000 yards of a school.

• Test: “Substantially affect” interstate commerce

  • Here, possession itself is a crime – nothing is in ISC. (Hammer)

• Kennedy cites Brandeis’s concept of state laboratories for experimentation from New State Ice Co v. Liebmann (1932, Brandeis).

  • (Brandeis wanted experimentation and progress -> Fed. Gov. choose the best option.)

  • Federal Government gets involved and experimentation stops. Need a diversity of approaches (e.g., 1000 yards in NYC is a lot)

• (1) use of the channels of interstate commerce, (2) the "instrumentalities" (for example, vehicles) used in interstate commerce, and (3) activities that substantially affect interstate commerce.

• Thomas – would overturn Wickard. Commerce is not production and is not agriculture and is not possession.

• Breyer – Wants rational basis. Guns <-> Schools <-> Commerce. Like Katzenbach.

US v. Morrison (2000)

• Violence Against Women Act civil remedy portion unconstitutional because no basis in commerce. Gender motivated crimes are not commerce.

• Rehnquist for majority

• 4 dissenters: let Congress do its job.

• Could 14A apply? State action problem – crime of gender violence not a state action.

Gonzalez v. Raich (2005)

• Federal ban on private cultivation of weed allowed under CC

• Wickard redux

• Return to Rational basis. Back off after Lopez and Morrison

• (But NFIB later…)

Congressional Powers and Federalism: Taxing/Spending

Bailey v. Drexel Furniture (1922)

• Post-Hammer, Congress passes a tax on employers who use child labor.

• Precedent: Doremus (1919): as long as reasonable relationship to tax, it’s OK.

• Held: Tax was really a penalty, so trying to regulate where a power didn’t actually exist.

• [What’s the line between a tax and a penalty?]

Sonzinsky v. US (1937): Every tax is in some way a regulation. Melts away the distinction.

US v. Butler (1936)

• Bill gives tax credit to farmers who don’t overproduce (forerunner to Wickard)

• At the crossroads of judicial activism/switch in time…

• “General Welfare” clause:

  • Madison: Just a reference to the other powers in the Constitution

  • Hamilton: A separate discrete power [more expansive]

• Justice Roberts: Accepts Hamilton position, but bill encroaches on state – too coercive

  • Like McCulloch: the power to coerce is power to destroy.

• Stone, Dissent: We need judicial self-restraint; “Courts are not the only agency with the capacity to govern.”

Stewart Machine v. Davis (1937)

• Statute: If employer contribute to state unemployment fund, excused from 90% of federal unemployment tax.

• Cardozo: OK under Tax/Spend. Inducement coercement.

  • Try to avoid race to the bottom -- states decreasing taxes to keep businesses happy.

• PROF: Judicial minimalism.

South Dakota v. Dole (1987): The leading spending case before NFIB.

• Withhold highway funds (5%) if drinking age is lower than 21. Constitutional.

• NOTE: Couldn’t use Commerce Clause because of 21A.

• CJ Rehnquist Test:

  • (1) The condition must be unambiguous; (2) The condition must promote "the general welfare"; (3) The condition should relate "to the federal interest in particular national projects or programs"; and (4) Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. E.g. a tax to speak`

• Pressure can turn into coercion, but this isn’t it....