Commerce Clause Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Article I, Section 8, of the U.S. Constitution lists the powers of the U.S. Congress. Under the original design of the Constitution, the Framers attempted to achieve the paradoxical objective of a strong government of limited powers by limiting the range of powers of the new legislative branch to those “enumerated powers” listed in Article I, Section 8, and then granting plenary power over that list by giving Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

From the beginning, one of the most important of the enumerated powers granted to Congress was the commerce clause, which grants Congress the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Prior to the ratification of the Constitution, the national government did not have the legal authority under the Articles of Confederation to regulate commercial activity, thus causing state governments to engage in trade wars by placing tariffs and other taxes on out-of-state goods, and some states conducted their own trade policies with foreign nations. By granting the power to the federal government, the Framers apparently intended to facilitate a national economy and to minimize barriers to interstate commercial activity. Undoubtedly, the commerce power has turned out to be one the most important sources for the expansion of federal power over time.

Nonetheless, the exact scope of the commerce clause has long been a subject of debate and even controversy. In Gibbons v. Ogden (1824), Chief Justice John Marshall sided with the federal government over the issue of licensing navigation. Marshall found that Congress had the authority to regulate navigation between states pursuant to its commerce power, and the federal license trumped attempts by states to regulate in the same waters. By the time of the industrial revolution in the late nineteenth century and into the early twentieth century, the reach of the commerce power was again called into question. For example, the Supreme Court upheld the regulation of meat dealers and stockyards in Swift & Co. v. Swift (1905) and Stafford v. Wallace (1922), the shipment of lottery tickets in Champion v. Ames (1903), and the regulation of prostitution in Hoke v. United States (1913), as permissible legislation regulating items placed in the “current of commerce.” However, the Supreme Court drew the line between purely local activities and those involving interstate commerce, and held that there exists an important distinction between “manufacturing” and commerce. For instance, the Court held that Congress could regulate neither the monopoly over the manufacturing of sugar in United States. v. E.C. Knight & Co. (1895) nor child labor in Hammer v. Dagenhart (1918) because manufacturing and labor are purely local activities outside the reach of the commerce clause. This period has been characterized as one of judicial dualism in which the Court allowed Congress to expand federal power over social or economic activity in some areas, but not others.

The debate over Congress’s commerce power came to a head during the New Deal period in the 1930s. The Court initially struck down numerous statutes involving labor and other economic policies that it considered purely local activities outside the purview of the commerce clause. However, the Court eventually relented and upheld the regulation of manufacturing, labor, and similar activities that could be viewed has having a “substantial effect” on interstate commerce in NLRB v. Jones & Laughlin Steel Corp. (1937), United States v. Darby (1941), and Wickard v. Filburn (1942). While those decisions upheld and legitimized key New Deal legislation, the logic was used by Congress to support the passage of provisions in the Civil Rights Act of 1964, regarding discrimination in places of “public accommodation,” which were upheld by the Court under the commerce clause in Heart of Atlanta Motel v. United States (1964), and Katzenbach v. McClung (1964). By the 1980s, Congress had built a large portion of the regulatory state—including forays into environmental policy and criminal law—on the back of its broad commerce power, and it was widely assumed that the Supreme Court would not attempt to draw lines around the commerce power.

But in the 1990s, the Supreme Court did find limits to Congress’s commerce power. Applying the “substantial effects” test, the Court determined that Congress could not, pursuant to its commerce power, criminalize the possession of guns on school grounds in United States v. Lopez (1995) or provide a federal civil remedy for victims of gender motivated violence in United States v. Morrison (2000). The Rehnquist Court’s resurrection of judicially enforceable limits on Congress’s commerce power has sparked a debate over the proper role of the Court in these and other federalism cases. Some have argued that the Court’s recent decisions are proper and long overdue, and that only the Court can enforce the constitutional federalism structures intended to place real limits on the scope of the national legislative powers. Others argue that Congress has the authority and means to engage in fact finding, policy evaluation, and constitutional deliberation; Congress also should not be subjected to judicial review over an area in which Congress has plenary powers.

Bibliography:

Calabresi, Steven G. “A Government of Limited and Enumerated Powers: In Defense of United States v. Lopez.” Michigan Law Review 94 (1995): 752–831.
Colker, Ruth, and James J. Brudney. “Dissing Congress.” Michigan Law Review 100, no. 1 (2001), 80–144.
McCloskey, Robert G. The American Supreme Court. Chicago: The University of Chicago Press, 1960.
NLRB v. Jones & Laughlin Steel Corp, 301 U.S. 1 (1937).
Pickerill, J. Mitchell. Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System. Durham, N.C.: Duke University Press. 2004.