Please prepare a response paper reflecting on the materials for the remote class session on the Commerce power. The papers should be no more than 500 words. You are not expected to summarize every aspect of the reading, but rather to make a critical point, suitable for class discussion, based on the reading.
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Welcome back, everyone to the second video.
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To help prepare for our first online session in the introductory Constitutional Law class.
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As you know from the readings. Our session will focus on Congress’s powers under the Commerce Clause of the Constitution.
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For most of US constitutional law history, the Commerce Clause has been seen as granting significant authority to Congress.
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And following from that is, restricting the authority of states over the economic life of the nation.
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Congress has made extensive use of its powers under the Commerce Clause.
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It has interpreted its powers very broadly,
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and in the process it has generated ongoing debate over the balance of power between the federal government and the state government.
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We will get into that debate in a bit more detail during our online session.
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But what I want to do in this video is to give you some background on the Commerce clause,
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and also talk through how to approach the readings for the online session,
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and the key questions and issues that you should keep in mind as you read through the materials.
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So let’s begin. As is customary with the text of the Constitution, article one, section eight,
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clause three of the Constitution states that the Congress shall have power to regulate commerce with foreign nations,
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and among the several states, and with the Indian tribes.
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Now, there are a couple of things to note in this formulation. The first is that the Commerce Clause, as the wording would suggest,
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forms part of a much longer sentence that tells us what the enumerated powers of Congress consist of.
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And second, that Congress has power to regulate commerce under this clause applies in three distinct types of situations with foreign nations.
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Among the several states and with the Indian tribes.
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Now, does this mean that the meaning of the terms regulate or commerce will be different depending on the different situations?
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The general view is no. These two words regulate and commerce, even though they are vague and imprecise in all the ways that we will discuss.
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I mean exactly the same thing no matter the situation, if there is any difference in the powers of Congress in these situations,
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it arises, as Professor Akila Ma has argued, from the use of the words with and among.
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So regulating commerce with foreign nations may mean something quite different from regulating commerce among the several states.
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And more generally, each of these powers would be construed differently depending on the other provisions in the Constitution,
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such as those dealing with foreign affairs, for example. In other words, the three categories of commerce as commerce powers are not identical,
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but the difference between them is not because we think that the word commerce changes in meaning from one category to the next.
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But then why does article one, section eight cover these three distinct situations all in the same breath?
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After all, as we saw in our discussion of constitutional interpretation when we were together in Madrid, it is not above us.
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Constitutional law treats foreign nations, for example, the same states are much less Indian tribes as the same kinds of entities.
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The reason that constitutional law scholars such as professor Jack welcome suggest
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is that all three situations reflect a common underlying structure principle,
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namely, that Congress should have the power to legislate in situations where it would be better for the nation to speak and act with one voice.
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These would include instances where states acting by themselves may not be able to resolve a problem.
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For example, when is activity that takes place in one state but it have an impact on one or more states,
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or when an issue requires collective action by several states or by states,
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would have an incentive to pass laws that undercut other states or engage in competition with them,
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rather than acting in the common national interest.
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In this video and our online session, we will focus on the interstate segment of the Congress’s commerce powers,
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that is, Congress’s ability to regulate commerce among states.
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But before we do that, I want to say a few words about the other two powers concerning commerce with foreign nations and with Indian tribes.
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The so-called Foreign Commerce Clause reflects the importance of the founders placed in commerce with foreign nations.
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At the time the Constitution was drafted.
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That was by and large a consensus that in order to compete effectively with the British, a stronger national union would be necessary.
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And for this reason,
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and to avoid scenarios in which the new nation would end up facing diplomatic embarrassment or difficulties by states acting on their own initiative,
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the framers decided in favor of exclusive federal control over foreign commerce.
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In this, they were influenced by the experience of the Articles of Confederation,
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where individual states lacking full sovereign authority to act on the international
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plain could be easily played off against each other by foreign powers,
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undercutting economic growth and progress and leading to foreign policy anarchy.
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Federal court cases interpreting the Foreign Commerce Clause agree that the federal government’s power under the clause is exclusive and absolute,
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and in Chief Justice Marshall words that it comprehends every species of commercial intercourse between the United States and foreign nations.
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But the Foreign Commerce Clause has received fairly little judicial attention overall,
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in part because it has been eclipsed by the Interstate Commerce Clause, which has received the bulk of the scholarly and judicial scrutiny.
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Similar to the Foreign Commerce Clause, the Indian Commerce Clause,
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to exclude states from having any regulatory authority over Native American affairs and makes them the exclusive province of the federal government.
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At the time of drafting, Indian tribes were considered to be functioning sovereigns, but not to the fullest extent,
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and the scope and degree of their sovereign authority has been a matter of contention over the years.
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From the very outset, Congress construed its power to regulate commerce with Indian tribes very expansively,
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to encompass matters far beyond trade and business. A series of Trade and Intercourse Act passed by Congress in the 1790s did not only
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regulate um land sales transactions and licenses for trade with the Indian tribes,
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but also prohibited any crime borne or trespass against the personal property of any peaceable and friendly Indian or Indians.
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These crimes included all kinds of non-economic harms, such as rape and murder.
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And it is only recently that we see some pushback to Congress’s broad interpretation of commerce to include non economic relations with Indian tribes,
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notably by some judges of the Supreme Court.
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The recent 2023 case of Haaland was for fracking, involving a challenge to the federal Indian Child Welfare Act.
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Reflects this divergence of opinion within the court. This is the legislation that was passed by Congress in 1978,
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in order to lay down requirements that would protect Native American children from being removed from their homes and communities.
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And though the majority opinion authored by Justice Barrett upheld the constitutionality of the act on the
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basis of long standing precedent recognizing Congress’s broad and established authority over Indian affairs,
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Justice Thomas’s dissenting opinion argued for a much narrower scope of federal authority,
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based on his originalist understanding of the meaning of commerce with Indians as
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being confined to the buying and selling of goods and transportation for that purpose.
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As we will see what commerce means both as a historical matter and over the years has been one of the main issues in the Supreme Court’s
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interpretation of the Interstate Commerce Clause and the federal government’s authority to track legislation under that clause.
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With that, let’s turn to the Interstate Commerce Clause and what you should keep in mind as you read through the materials.
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The Constitution does not define either the word commerce or what does it mean to regulate commerce among states?
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So the two main questions that arise when interpreting the Commerce Clause are the scope of the meaning of the term commerce.
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And when can this commerce be viewed as interstate rather than interstate commerce?
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Disclaimers, for example, only include activities such as buying and selling and the transportation of goods and people.
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Order that also encompass activities such as agriculture or manufacturing, or even non economic activities.
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And in order for the commerce to constitute intrastate commerce or interstate commerce,
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just the activity itself have to cross state lines or connectivity that takes place within the borders of one state.
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Also be interpreted as commerce among states.
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There is significant controversy on both these issues, both amongst legal scholars as well as among courts.
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On the first question, you have professors Jack Balkin and Randy Barnett on opposite sides of the camp.
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Professor Balkin puts forward an interaction theory of the original meaning of the word commerce, arguing that in the 18th century,
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unlike today, the word commerce referred to not only trade and business, but all forms of economic as well as social relations.
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So rather than being limited to commercial activity,
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commerce was used as a synonym for all kinds of social intercourse involving movements, transactions, and relations between people.
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On this understanding. Economic exchanges were merely one type of commerce.
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As we said earlier,
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this is similar to how recent scholarship on the Indian Commerce Clause understands the term commerce as synonymous with intercourse of all kinds,
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covering everyday political, social, cultural and economic interactions.
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In contrast, Professor Barnett reads the historical evidence to claim that both dictionary definitions of the semantic meaning of the term commons,
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as well as the way the term was used,
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support a much narrower understanding of commerce as referring to the trade or transportation of people and things.
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The Supreme Court’s jurisprudence in this and the related question of interstate versus intrastate commerce is complex and evolving.
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The one can identify a number of distinct phases in the court’s thinking on the scope of Congress’s powers under the Commerce Clause.
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In the beginning, there is not much cause for the Supreme Court to pronounce on this,
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for the simple reason that there is very little commerce between states to speak of.
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The 1824 case of Gibbons versus Ogden was the first major Supreme Court case on
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the scope of Congress’s power to regulate commerce among the several states.
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This was a case dealing with coastal shipping and Congress’s power to regulate and license commercial maritime activity.
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The State of New York had granted a monopoly on steamboat operations to various individuals, including Mr. Aron,
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often the owner of a steamboat business that offered commercial services between various ports in New York and New Jersey.
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Mr. Ogden found himself competing with his ex business partner, a gentleman by the name of Mr. Thomas Gibbons,
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who also had a steamboat company based in new Jersey that offered services between New York and New
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Jersey pursuant to a license granted by the federal government under the Coasting Act of 1793.
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When a New York state court granted an injunction prohibiting Mr. Gibbons from operating in New York waters,
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Gibbons appealed the case up to the Supreme Court. Writing for unanimous court,
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Chief Justice Marshall upheld Congress’s authority to regulate this activity on the basis that Congress’s
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power under the Commerce Clause extended to every species of commercial intercourse among the several states,
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and included the regulation of interstate commercial maritime routes.
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The only limitations to Congress’s powers were those that were scribed in the Constitution itself,
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and Congress had the ability to regulate matters such as the New York monopoly that were internal to the state.
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If they were fundamentally intertwined with interstate commerce.
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The period after this decision saw a dramatic expansion of the federal government’s authority over the economic life of the nation.
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There was a flurry of legislative activity by Congress, for example, in the form of the Interstate Commerce Act of 1877,
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which regulates interstate transportation, and the 1890 Sherman Antitrust Act, which prohibits trusts and monopolies and restraint of trade.
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Then came a brief period known as the Lochner era, which we also spoke about when we were together in Madrid.
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This was when the Supreme Court, operating in a more, less fair social and economic environment,
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began engaging in judicial review of economic legislation and striking down laws that were deemed to interfere with economic liberties,
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in particular the freedom of contract. This also applied to legislation under the Commerce Clause, which was given a narrower interpretation.
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The 1918 case of hammer was a stag and hart concerned challenge to federal legislation
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prohibiting the interstate sale of goods that were produced by child labor.
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Congress’s ability to pass this legislation was challenged by Mr. Rollin Dagen Hart,
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a cotton mill owner in that North Carolina who employed his two sons at the mill.
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The court was thus faced with the question where the Congress had the power to regulate the interstate shipment of goods produced by child labor.
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The Supreme Court by majority held that the legislation was unconstitutional on the
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basis that the manufacturing of cotton did not itself constitute interstate commerce,
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and that Congress had exceeded its powers by using the interstate shipment as a hook to regulate what was a purely intrastate manufacturing activity.
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Another case from this period is the Supreme Court’s decision in a case called Schechter Poultry Corporation versus the United States.
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This case concerned the constitutionality of parts of the National Industrial Recovery Act,
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a federal legislation passed in response to the Great Depression that set new regulatory standards on things like minimum wages,
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hours of work, etc. for businesses, including the poultry industry.
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The regulations promulgated under this law included requirements for the sale of chickens, including unhealthy ones.
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Amongst other things, the government claimed that the Scheckter brothers had violated the regulations by selling uninspected and unfit chickens.
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A unanimous Supreme Court struck down the legislation as exceeding Congress’s powers under the Commerce Clause.
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While the court acknowledged that the poultry market with an interstate market
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as such were the raising and sale of poultry taking place across state lines,
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in this case, the Schechter Brothers chickens were sold exclusively to buyers in the same state.
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Since any interstate effects of these transactions were purely indirect,
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Congress did not have the authority to regulate this type of commercial activity.
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Reportedly, Justice Brandeis was said to have told the government lawyers, this is the end of this business of centralization,
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and I want you to go back and tell the president that we’re not going to let this government centralize everything.
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These turned out to be famous last words, as faced with intense political pushback from its New Deal decisions.
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The Supreme Court ended up reversing course just two years later in the case of National Labor Relations Board versus Jones and Locklin.
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Steve Company. This case decided soon after President Roosevelt had announced his court packing plan
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with a landmark opinion on what has been called the Constitutional Revolution of 1937,
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which effectively ended the courts and validation of New Deal legislation.
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The case involved a challenge to the 1935 National Labor Relations Act, a federal legislation,
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but established a National Labor Relations Board to investigate unfair labor practices and oversee collective bargaining.
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The NLRB received a complaint alleging that the Steel Corporation,
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which was one of the biggest steel factories in the United States at the time with a massive workforce,
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had wrongfully fired some workers who were attempting to unionize.
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When the NLRB held that this amounted to discrimination and ordered the company to rehire the workers,
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it refused to comply and challenged the order on the basis that Congress did
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not have the authority under the Commerce Clause to pass this legislation.
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The case was appealed all the way to the Supreme Court, which by A54 majority upheld the constitutionality of the National Labor Relations Act.
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Writing for the majority, Chief Justice Hughes held that Congress had the power under the Commerce Clause to regulate economic activities.
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If they had such a close and substantial relation to interstate commerce that their control
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is essential or appropriate to protect that commerce from burdens and obstructions.
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It could thus passed legislation to govern labor disputes. If those disputes had sufficient impact on interstate commerce.
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NLRB signaled the New Day redefinition of the new Commerce Clause of the Commerce Clause and the court’s
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renewed willingness to interpret Congress’s powers under the Commerce Clause extremely broadly.
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Following this decision, the Supreme Court did not strike down a single law on the basis that it exceeded
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Congress’s powers under the Commerce Clause for well over half a century.
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The case of record versus full blown, just the first case in your reading materials,
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is emblematic of this trend and the far reaching congressional authority that the court was willing to grant.
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The first time. We then see the core pulling back from this interpretation in 1995.
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In the case of United States versus Lopez, which is the next case excerpted in your reading materials.
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In this case a sharply divided Supreme Court ruled by five votes to four to invalidate the federal Gun Free School Zones Act,
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which made it a crime to possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone.
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We will have more to say on this. And the Supreme Court’s turned to a more conservative interpretation of the Commerce Clause in subsequent cases,
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such as NFIB versus Sebelius, when we meet for our online class session.
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There is one final thing I want to mention before wrapping up,
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and that is the effect of Congress legislative activity under the Commerce Clause on the power and authority of the States.
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Till now, we have been focused on the federal government and what it may or may not do under the Commerce Clause,
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but in allocating a certain set of powers to the federal government.
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The Commerce Clause also had an indirect effect on state governments.
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The first of these, as we will see in the case of Carwashes American Honda case on the readings,
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is that when Congress passes legislation to regulate interstate commerce, it has the effect of preempting state regulation on the same matter.
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Preemption is the doctrine whereby legislation by Congress will supersede state
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law in order to guarantee the smooth functioning of the national economy.
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The other, even more far reaching impact on states occurs through what is known as the negative or the dormant Commerce Clause,
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which we will discuss in the context of Pike versus Bruce Church.
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This is the implicit prohibition of the Commerce Clause on state or local regulation
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that either discriminates against or unduly burdens interstate commerce.
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Importantly, the Dormant Commerce Clause can limit state authority even if Congress has not passed relevant legislation.
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I hope this overview was helpful and helping you see where the cases people read
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fit into the evolution of the Commerce Clause doctrine in U.S. constitutional law,
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and the kinds of issues that courts have had to confront when interpreting this clause.
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I look forward to discussing them in more detail when you when we meet for our first online session.
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Commerce Clause
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Text of Commerce Clause
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Overview of Commerce Clause
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Interpreting the Commerce Clause
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Early cases on Commerce Clause
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Lochner Era
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New Deal Redefinition of Commerce Clause
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Effects of Congress’s Commerce Clause power on states