Federal Legislation under the Commerce Clause

Federal Legislation under the Commerce Clause

1. Overview

   1. Article I §8 – 18 clauses enumeration specific powers of Congress

      1. “Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes...”

      2. Authority for broad range of fed legis – focus of most SC decisions.

   2. Historical overview

      1. Gibbons – broadest grant of commerce clause power; Court then never overturned Congress legis based on commerce clause

      2. 1937 – struck down New Deal legis. (Schecter Poultry and Carter Coal)

      3. 1937 – 1995: No legis struck down based on commerce clause

      4. 1995: Lopez – guns in schools

      5. 2000: Morrison – VAWA struck down

   3. Questions Court is considering

      1. What is commerce? One stage of business, or all aspects of business?

      2. What does among several states mean; is it limited to direct effects or any effect?

      3. Does 10^th amendment limit Congressional action in this area? Is object to be regulated typically subject to state control?

2. Gibbons v. Ogden and Definition of Commerce Power

   1. Facts

      1. Two guys given monopoly over steamboats in NY waters by NY legis. Steamboats operated between NYC and NJ.

      2. Gibbons said that had right to operate ferry b/c he was licensed under federal law as “vessels in the coasting trade.”

      3. What Marshall was doing was beginning the conversation about the much more common situation – when Congress has not enacted legislation pursuant to one of its constitutional powers. Congress really had not legislated many things – they were not aggressively using all of the power that Marshall was assuming for it.

      4. Field preemption - Most cases in the early 19^th century were coming up under the dormant Commerce clause – dormant Congress – where the state was legislating and whether the existence of the power of Congress precluded the state from the legislating even in the absence of Congress never having taken action in the field.

   2. Legal Issues

      1. What is commerce?

         1. Ogden – limited to “traffic, buying and selling or interchange of commodities”

         2. SC: “Commerce is traffic, but is something more: intercourse. The commercial intercourse between nations, and parts of nations, in all its branches,...and is regulated by prescribing rules for carrying on that intercourse.”

            1. 
               Includes all phases of business, including navigation.
               
            2. 
               Economic development involved both the movement of goods and the movement of people – people looking for job opportunities or slaves. People were considered commodities in some ways during this period b/c there weren’t other areas of law to cover the areas – welfare or employment law.
               

         3. What influence do the objects being regulated have in the interpretation?

      2. What is Among the Several states?

         1. Three possible choices -> court chooses intermediate intermingled with

            1. 
               Limited expressly to interstate activities – intrastate was beyond scope of power.
               
            2. 
               Among means intermingled with. Commerce among the states can’t stop at external boundary line of each state, but may be introduced into the interior. Among means concerning or affecting more than one state. Requires more line drawing and case-by-case inquiry into effects of particular activity, as well as consideration of level of impact – direct or indirect, substantial or insubstantial.
               
            3. 
               In the midst of – from dictionary definitions. Then everything could have been reg’d b/c in midst of US.
               

         2. Congress can regulate intrastate commerce if it had impact on interstate activities

            1. 
               “But, in regulating commerce with foreign nations, the power of Congress does not stop at juris lines of several States...The power of Congress, then, whatever it may be, must be exercised within the territorial juris of several states.
               

      3. Does State sovereignty limit Congressional power? Congress has plenary power once it’s acted (Supremacy Clause) and its legislation preempts state legislation.

         1. “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. If...the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single gov’t.”

            1. 
               Congress has complete authority to regulate all commerce between states.
               
            2. 
               When Congress is acting, it can regulate in the same way as it could if no state gov’ts existed.
               
            3. 
               Sole check on Congress is thus political process – states have some leverage w/ Congress through Senate.
               

         2. How would the purposes of Congressional regulation limit commerce power?

            1. 
               Inspection, quarantine, and health laws “form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to the national gov’t...No direct general power over these objects is granted to congress and, consequently they remain subject to state legislation. If the legislative power of the Union can reach them, it must be for national purposes.”
               
            2. 
               Scope of national power may depend not only on substance of regulation, but also on the purposes for which the regulation was adopted – the congruence between purposes underlying regulation and the constitutional grant of power.
               
            3. 
               Marshall in McCulloch – if Congress passes laws on objects not entrusted to it, the court would have to strike them down.
               
            4. 
               How is this at odds with the phrase in (a)?
               

   3. Dormant Commerce Clause - What are state powers if Congress has not acted?

      1. Are different depending on whether Congress has issued legislation of its own pursuant to commerce power on subject matter in question b/c you can answer questions about state/federal power w/o going through whole exposition of exclusivity of commerce power.

      2. States and affirmative power

         1. Affirmative grant of power is not exclusive, but grant of full power is inconsistent and incompatible with the existence of right in another. Grant of power to one sovereign prevents “action of all others that would perform the same operation on the same thing.”

      3. Exclusivity of the commerce power

         1. Gives Marshall’s opening salvo on whether commerce power is exclusive – does Article I, 8 implicitly say what it doesn’t explicitly say

         2. Some powers enumerated are exclusive and others are not – e.g. taxation is not exclusive, but establishing federal courts inferior to the Supreme Court is exclusive.

         3. Any commercial regulation not expressly forbidden to which state had original power (prior to constitution) is allowed.

         4. Article I, Section 8 – says that Congress can legislate from the “General Welfare of the people”

            1. 
               Marshall still reserves police powers to the state – power for public health, well-being, and morals.
               
            2. 
               General welfare legislation was thought to belong to the States and if you took Article I, Section 8, then it would oust and exclude any state legislation in the area.
               
            3. 
               But you could also read it as just giving Congress the power to lay and collect taxes.
               

         5. Types of exclusivity

            1. 
               Purposes – even if end is a legitimate one, state could achieve its purposes through means which infringe on Congress’ power.
               

         6. Taxation – distinction from commerce

            1. 
               Indispensable to state’s existence
               
            2. 
               Can reside in and be exercised in different authorities at the same time
               
            3. 
               Is infinitely divisible
               
            4. 
               Power to take in another what is necessary for certain purposes
               

      4. Marshall in Willson v. Black Bird Creek Marsh

         1. Unless state law comes in conflict with constitution or a law of US, is an affair between gov’t of DE and its citizens, of which this court can take no cognizance.

         2. If Congress had passed law to control state legis over small navigable creeks, then it would be unconstit.

         3. Counsel for D characterized dam as a “health measure” under control of the states.

3. The State’s Police Powers as a Constraint on the National Commerce Power – Mayor of City of NY v. Miln

   1. Mayor of the City of New York v. Miln (1837) – Development of dual federalism doctrine

      1. Historical Background

         1. Legislation that was aimed at the general health and welfare of the people, but it intervenes at the point of entry of ships from foreign nations or other states into New York.

         2. At the time, there was no right recognized to freedom of movement and states often put up barriers to entry for paupers, slaves, free blacks (especially slave states), and vagabonds – people with no obvious means of support.

         3. At this time, foreign immigration was not the domain of the federal gov’t – comprehensive immigration policies and legislation did not emerge until decades later.

         4. The constitution only talks about the federal gov’t having naturalization power, but not explicit control over immigration. Many people wanted to go elsewhere, but had to stop in New York and work prior to going to their final destination.

      2. Ruling

         1. As long as a state is using means to get to an ends that is allowed to them, then even if the means infringes on Congressional commerce power, the State is still allowed to employ it. Objects of state power that concern ordinary course of affairs, concern the lives, liberties, and properties of the people, internal order and prosperity of state.

         2. Barbour also particularly justifies New York’s action – New York is uniquely America’s global city and has to deal with the high level of immigration.

      3. How do the objects of commerce regulated relate to power of Congress?

         1. Federalist #45: Objects of state that which concern ordinary course of affairs, concern the lives, liberties and properties of the people, internal orders and prosperity of state, are reserved to the several states.

            1. 
               Person concerned was w/in territory of the state
               

      4. How does the delineation of power fall to the states?

         1. Jurisdiction w/in the limits of the states

         2. The location of the dispute was w/in state

         3. Benefits went directly to the states

         4. Purpose of the statute was the welfare of the state

         5. The means were directly related to the ends

      5. What is not specifically delegated to Congress is left to the states (10^th amendment)

         1. State has same undeniable and unlimited juris over persons and things, within its territorial limits, as any foreign nation; where that juris is not surrendered or restrained by constit of US.

         2. It is the right and duty of the state to look after the welfare of its people.

            1. 
               States had ability to close its borders to paupers and other vagabonds, since they would contribute to general moral decline.
               

      6. Dissent

         1. Treats Marshall as saying that once a power has been delineated, then Congress has exclusive power.

         2. NY is reaching out beyond its territorial limits.

         3. Means too much withdrawn from the authority of the ends – the power granted – lose their power to be employed.

         4. A much more nationalist view – that the more power you give the states in the arena of commerce means that international and interstate conflicts will arise.

Directory: sites -> default -> files -> upload documents
upload documents -> Torts Outline Daniel Ricks
upload documents -> Torts outline Functions of Tort Law
upload documents -> Constitutional Law (Yoshino, Fall 2009) Table of Contents
upload documents -> Arrest: (1) pc? (2) Warrant required?
upload documents -> Civil procedure outline
upload documents -> Criminal Procedure: Police Investigation
upload documents -> Regulation of Agricultural gmos in China
upload documents -> Rodriguez Con Law Outline Judicial Review and Constitutional Interpretation
upload documents -> Standing Justiciability (§ 501 Legal/beneficial owner of exclusive right? “Arising under” jx?) 46 Statute of Limitations Run? 46 Is Π an Author? 14 Is this a Work of Joint Authorship? 14 Is it a Work for Hire?
upload documents -> Fed Courts Outline: 26 Pages

Download 0.86 Mb.

Share with your friends: