A. Creation of National Gov’t and Separation of Power 7

Interstate and Foreign Commerce and Personal Mobility

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Interstate and Foreign Commerce and Personal Mobility

Groves v. Slaughter (1841) – Are slaves items of commerce?
1. Historical Background
  1. MS didn’t want to compete with the outside market for slaves – wanted to protect its own market, so they prohibited importation of slaves in their territory.
  2. There were strategic judgments to be made on broader principles – some states, like OH, wanted Congress to abolish slavery. But that wasn’t happening quickly, so they wanted to be able to adopt all possible stances to legislate against slavery.
  3. So state’s rights becomes a rallying point for anti-slave states to abolish the slave trade and slavery.
  4. If police powers couldn’t cure state legislation that had an impact on interstate commerce, if Congress had exclusive power to regulate commerce, the anti-slave states didn’t have much room to operate and the federal gov’t could force more cooperation from anti-slave states. Both sides are using state’s rights arguments to keep the federal gov’t out...
2. Ruling
  1. Slaves were an item of commerce, and thus their entry could not be prohibited
    1. Is not a regulation of police power, it is aimed at introduction of slaves as merchandise, so its purpose is to prefent them from being subjects of intercourse with other states when introduced for purpose of sale.
  2. McClean – dilemma since he was from an abolitionist state
    1. If slaves were item of commerce, then Congress could prohibit interstate slave trade through commerce power.
      1. So slaves are not item of commerce, but instead are persons.
    2. Power of slavery then belongs to states to control or to prohibit entry
  3. Baldwin
    1. States have power to determine status of slaves, but if they determine that they are property, then they are subjects of commerce and traffic can be regulated by congress.
    2. Being property, the owners are protected from violations of rights of property by congress under 5^th amendment.
    3. If slaves are transported through free states, the laws of that state can’t take away vested property rights granted by another state.
Cooley v. Board of Wardens (1851) – state gov’ts retain control even where Congress has legis.
1. Background
  1. PA law required vessels entering and leaving harbor in Philly to engage local pilot to guide them through harbor.
  2. There was a penalty for noncompliance.
  3. Action was for retrieval of penalty for vessels engaged in coastwise trade between NY and Philly.
2. Is the object of commerce under federal regulation?
  1. Navigation is a settled legitimate object.
3. Is the purpose/ends within Congressional power?
  1. Regulation of qualifications of pilots, modes and times of rendering services, are regs of navigation and hence of commerce
4. Did grant of power to congress deprive states of sovereignty – is the entire field of navigation regulation preempted?
  1. When nature of power granted to congress preempts entire field, then subjects of that power are of such a nature as to require exclusive legislation by commerce.
    1. When subjects are in their nature national, or admit only of one uniform system or plan of reg, then they can by their nature require exclusive legis. by congress
  2. Commerce embraces a vast field with many objects; some demanding single uniform rule and others demanding diversity to meet local needs.
    1. Act of 1789 says that until congress acts, states can legis – power is local and not national.
    2. Need different systems of regulation.
  3. Congress has regulated in the area, but has not manifested intent to regulate entire field and deprive states of any power.
  4. Historical consequence – practice has been that states have regulated pilots for 60 years.
  5. Exclusive federal power would deprive states of ability to change to fit needs of growing commercial reality.

The Commerce Clause in the Progressive Era

History
1. Progressive era – despite Lochner being laissez faire, it would be a mistake to characterize this era as being laissez faire.
2. The administrative agency became the tool of choice for progressive leaders looking to bring scientific expertise to bear on different regulatory problems – the beginning point of the regulatory state.
3. The big gap is the treatment of commerce clause cases between Lochner and the New Deal – it is a broken up exposure to commerce clause doctrine in different periods.
General Structure – What Congress can regulate under Commerce clause
1. The regulation of things, objects, in commerce – interstate. (Darby, Heart of Atlanta)
  1. There can be Congressional regulation of things in Commerce.
  2. Upheld – Champion v. Ames – lottery tickets are moving and thus are objects of commerce that are being moved in interstate commercial traffic.
2. Regulation of the instrumentalities of commerce or persons or things in interstate commerce
  1. Highways, navigational channels, railroads (legislating width of gauge), sunken ships
3. Congress can regulate things or processes that substantially affect interstate commerce or are related to it (Jones & Laughlin)
  1. Hammer – looks at directness, but seems a formalistic distinction rather than realistic distinction
  2. Lopez – develops test for this category – whether something substantially affects interstate commerce
    1. Examples – extortionate credit transactions (Perez), restaurants using substantial interstate supplies (McClung), inns and hotels catering to interstate guests (Heart of Atlnata), production and consumption of homegrown wheat (Wickard).  Where activity substantially affects interstate commerce, legislation regulating activity is allowed.
Champion v. Ames (1903)
1. Lottery statute is being challenged – prohibiting transportation of lottery tickets across state lines. The lottery company was centered in Paraguay.
2. Analogy of placing lottery tickets in the stream of commerce and placing unhealthful objects (diseased cattle) in the stream of commerce.
3. The court really doesn’t care so much what the methods are of the regulation as long as the regulation fits within the sphere of commerce.
4. Individual states aren’t squarely allowed to regulate within their sphere (states that don’t want lotteries) will be forced into a certain position b/c of competition from other states – people within the state will be importing lottery tickets.
Hammer v. Dagenhart (1918)
1. Child labor – father was suing to strike down law that prevented objects built with child labor from being imported into other states.
2. Goals of keeping children out of the workforce to put them in school
3. Legislation at the state level would be ineffective b/c of interstate commerce – states will be more competitive who allow child labor b/c the labor costs are much lower. If the federal gov’t can’t do this, then noone can.
4. But the stakes are much higher in this case.
5. Holmes says to look at the methods used – keeping impure items out of the flow of commerce. If the distinction just so happens to be that manufacturers no longer employ child labor, then those are just indirect effects. But we aren’t going to worry about the indirect effects and thus just allow Congress to legislate. He wants to give effect to a national majority sentiment against child labor – to mask what is really going on.

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A. Creation of National Gov’t and Separation of Power 7

Interstate and Foreign Commerce and Personal Mobility

Interstate and Foreign Commerce and Personal Mobility

Groves v. Slaughter (1841) – Are slaves items of commerce?

Historical Background

MS didn’t want to compete with the outside market for slaves – wanted to protect its own market, so they prohibited importation of slaves in their territory.

There were strategic judgments to be made on broader principles – some states, like OH, wanted Congress to abolish slavery. But that wasn’t happening quickly, so they wanted to be able to adopt all possible stances to legislate against slavery.

So state’s rights becomes a rallying point for anti-slave states to abolish the slave trade and slavery.

Ruling

Slaves were an item of commerce, and thus their entry could not be prohibited

Is not a regulation of police power, it is aimed at introduction of slaves as merchandise, so its purpose is to prefent them from being subjects of intercourse with other states when introduced for purpose of sale.

McClean – dilemma since he was from an abolitionist state

If slaves were item of commerce, then Congress could prohibit interstate slave trade through commerce power.

Power of slavery then belongs to states to control or to prohibit entry

Baldwin

States have power to determine status of slaves, but if they determine that they are property, then they are subjects of commerce and traffic can be regulated by congress.

Being property, the owners are protected from violations of rights of property by congress under 5th amendment.

If slaves are transported through free states, the laws of that state can’t take away vested property rights granted by another state.

Cooley v. Board of Wardens (1851) – state gov’ts retain control even where Congress has legis.

Background

PA law required vessels entering and leaving harbor in Philly to engage local pilot to guide them through harbor.

There was a penalty for noncompliance.

Action was for retrieval of penalty for vessels engaged in coastwise trade between NY and Philly.

Is the object of commerce under federal regulation?

Navigation is a settled legitimate object.

Is the purpose/ends within Congressional power?

Regulation of qualifications of pilots, modes and times of rendering services, are regs of navigation and hence of commerce

Did grant of power to congress deprive states of sovereignty – is the entire field of navigation regulation preempted?

When nature of power granted to congress preempts entire field, then subjects of that power are of such a nature as to require exclusive legislation by commerce.

When subjects are in their nature national, or admit only of one uniform system or plan of reg, then they can by their nature require exclusive legis. by congress

Commerce embraces a vast field with many objects; some demanding single uniform rule and others demanding diversity to meet local needs.

Act of 1789 says that until congress acts, states can legis – power is local and not national.

Need different systems of regulation.

Congress has regulated in the area, but has not manifested intent to regulate entire field and deprive states of any power.

Historical consequence – practice has been that states have regulated pilots for 60 years.

Exclusive federal power would deprive states of ability to change to fit needs of growing commercial reality.

The Commerce Clause in the Progressive Era

History

Progressive era – despite Lochner being laissez faire, it would be a mistake to characterize this era as being laissez faire.

The administrative agency became the tool of choice for progressive leaders looking to bring scientific expertise to bear on different regulatory problems – the beginning point of the regulatory state.

The big gap is the treatment of commerce clause cases between Lochner and the New Deal – it is a broken up exposure to commerce clause doctrine in different periods.

General Structure – What Congress can regulate under Commerce clause

The regulation of things, objects, in commerce – interstate. (Darby, Heart of Atlanta)

There can be Congressional regulation of things in Commerce.

Upheld – Champion v. Ames – lottery tickets are moving and thus are objects of commerce that are being moved in interstate commercial traffic.

Regulation of the instrumentalities of commerce or persons or things in interstate commerce

Highways, navigational channels, railroads (legislating width of gauge), sunken ships

Congress can regulate things or processes that substantially affect interstate commerce or are related to it (Jones & Laughlin)

Hammer – looks at directness, but seems a formalistic distinction rather than realistic distinction

Lopez – develops test for this category – whether something substantially affects interstate commerce

Champion v. Ames (1903)

Lottery statute is being challenged – prohibiting transportation of lottery tickets across state lines. The lottery company was centered in Paraguay.

Analogy of placing lottery tickets in the stream of commerce and placing unhealthful objects (diseased cattle) in the stream of commerce.

The court really doesn’t care so much what the methods are of the regulation as long as the regulation fits within the sphere of commerce.

Individual states aren’t squarely allowed to regulate within their sphere (states that don’t want lotteries) will be forced into a certain position b/c of competition from other states – people within the state will be importing lottery tickets.

Hammer v. Dagenhart (1918)

Child labor – father was suing to strike down law that prevented objects built with child labor from being imported into other states.

Goals of keeping children out of the workforce to put them in school

Legislation at the state level would be ineffective b/c of interstate commerce – states will be more competitive who allow child labor b/c the labor costs are much lower. If the federal gov’t can’t do this, then noone can.

But the stakes are much higher in this case.

Being property, the owners are protected from violations of rights of property by congress under 5^th amendment.