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

Congressional Powers and Federalism: 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...