Currents In Commerce Clause Scholarship Since Lopez: A Survey

AuthorArthur B. Mark, III
PositionAttorney and Litigation Fellow, Pacific Legal Foundation, Sacramento
Pages671-760

Page 671

Arthur B. Mark, III, Attorney and Litigation Fellow, Pacific Legal Foundation, Sacramento, California (abm@pacificlegal.org). This Article was developed in an Article Development Seminar taught by R.S. Radford, Director of the Program for Judicial Awareness at Pacific Legal Foundation. Thanks to R.S. for his direction and comments on several drafts of this Article.

I extend special thanks to Richard Epstein and Bob Pushaw for their valuable comments on early drafts of this Article; as well as Randy Barnett for sharing with me a draft of his most recent article on the original meaning of the Commerce Clause.

Introduction

In 1987, Richard Epstein wrote of the Commerce Clause:

The labor statutes, the civil rights statutes, the farm and agricultural statutes, and countless others rest on the commerce power, or more accurately on a construction of the commerce clause that grants the federal government jurisdiction so long as it can show (as it always can) that the regulated activity burdens, obstructs, or affects interstate commerce, however indirectly. Is this underlying interpretation of the commerce clause correct? The entire inquiry may be idle theoretical speculation, or it may have profound practical importance. I cannot say which, although at present I should guess the former; too much water has passed over the dam for there to be a candid judicial reexamination of the commerce clause that looks only to first principles.1

Despite Epstein's doubt that he would see a departure from the near plenary power conferred on Congress under the Commerce Clause following NLRB v. Jones & Laughlin Steel Corp.,2 United States v. Darby,3and Wickard v. Filburn4 from 1937-1942, the Court's decisions in United Page 672 States v. Lopez5 and United States v. Morrison6 represent at least the beginnings of judicial re-examination of the Commerce Clause.7 The Commerce Clause provides that Congress shall have power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."8 It is among the "few and defined" powers conferred on Congress in Article I of the Constitution.9

Among legal scholars, Lopez and then Morrison provoked what Epstein feared would never be: a vigorous re-examination of the scope and purpose of the Commerce Clause.10 After a brief discussion of the Page 673 development of modern Commerce Clause jurisprudence through Lopez and Morrison in Part I, this Article will survey modern legal scholarship on the Commerce Clause with the purpose of discerning emerging trends and challenges for the future. While this Article's primary goal is a survey, it also provides some analysis of arguments for and against the Court continuing to enforce restrictions on Congress's power to pass laws regulating intrastate, primarily non-commercial conduct under the Commerce Clause.

In light of Lopez's and Morrison's recently announced strictures on Congress's power under the Commerce Clause, this Article explores three general trends. Part II.A. covers scholarship focusing on the meaning of the text of the Commerce Clause. Federalism and judicial review of federal acts is the subject of Part II.B. In Part II.C. the survey concludes by describing the limits established in Lopez and Morrison and by looking at articles discussing the future of federal regulatory schemes dependent on the commerce power.

I An Overview Of Commerce Clause Jurisprudence

Commerce Clause jurisprudence dates from 1824 with Gibbons v. Ogden.11 12 In Gibbons, the United States Supreme Court invalidated a New York law that prevented New Jersey steamboat owners from operating boats between New Jersey and New York.13 Although today Gibbons would be defined primarily as a dormant commerce clause or preemption case,14 courts and commentators analyzing the scope of federal congressional authority under the Commerce Clause recur to Gibbons frequently because it provides a discussion of the scope and the meaning of the clause close in time to the Founding Era.15 Chief Justice Marshall Page 674 undertook to explicate the Commerce Clause, but did so within the confines of the facts presented in Gibbons. His discussion of what is commerce concludes by finding that the word "commerce" within the Commerce Clause "has always been understood to comprehend, navigation."16 The still-controversial part of Gibbons is Chief Justice Marshall's discussion of the words "among the several States."17

In sweeping language Chief Justice Marshall, defining the scope of the commerce power stated, "[a] thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior."18However broad this language, Marshall's opinion suggests federal regulation of intrastate activities under the Commerce Clause extends only to those forms of conduct that concern the transport of goods throughout the states, and not all economic activity.19 Chief Justice Marshall went on Page 675 to conclude that when Congress was regulating interstate commerce, it could do so in a plenary fashion and states could not act to interfere with its authority to do so.20

Following Gibbons, the Court interpreted the Commerce Clause in such cases as The Daniel Ball,21 Kidd v. Pearson,22 United States v. E.C. Knight Co.,23 Champion v. Ames,24 Houston, East & West Texas Railway Co. v. United States,25 Hammer v. Dagenhart,26 A.L.A. Schechter Poultry Corp. v. United States,27 and Carter v. Carter Coal Co.28 These cases developed three basic categories of Commerce Clause regulation the Court employs today, two of which have been relatively constant, the third of which was radically transformed by the New Deal Court from 1937-42.29

A The Limited Scope Of The Federal Commerce Power Before The New Deal

The analytical categories established prior to the New Deal were instrumentalities of interstate commerce; things moving in commerce; and a distinction between interstate commerce and other economic activity.30Comparing analytical modes used after the New Deal, cases interpreting the scope of the Commerce Clause allow federal control over: (1) channels of interstate commerce; (2) things moving in interstate commerce; and (3) commercial activities substantially affecting interstate commerce.31 The major change worked by the New Deal cases was the approval of federal statutes controlling completely intrastate activities under the guise of the Page 676 "affecting commerce" test first announced in NLRB v. Jones & Laughlin Steel Corp.,32 and expanded in United States v. Darby33 and Wickard v. Filburn.34 While some cases before Jones & Laughin Steel did approve federal statutes controlling a few intrastate activities such as railroad rates and certain uses of commerce considered immoral, these cases did not approach or even imply the broad sweep of federal power inaugurated in 1937.35

For example, Congress passed a statute regulating the shipment of lottery tickets in interstate commerce, which the Court upheld as a valid exercise of Congress's Commerce Clause power in Champion v. Ames to prevent "pollution" of interstate commerce by "immoral lottery tickets."36In Caminetti v. United States,37 the Court upheld the convictions of three men under the Mann Act, which prohibited the transportation of women and girls in interstate commerce for immoral purposes.38 Caminetti and Diggs violated the Act by taking their girlfriends from Sacramento, California, to Reno, Nevada, for immoral purposes (becoming a concubine or mistress); Hays violated the Mann Act by purchasing a train ticket for a girl to travel from Oklahoma City, Oklahoma, to Wichita, Kansas, "intending that she . . . engage in prostitution, debauchery and other immoral practices."39 The Court found the Mann Act constitutional as applied to Caminetti, Diggs, and Hays because it found the law was aimed at preventing "immoral and injurious uses" of the channels of interstate Page 677 commerce, a thing within the scope of the Commerce Clause.40 In Houston, East & West Texas Railway Co. v. United States, the Court upheld federal regulation of intrastate freight rates of railroads that also moved goods interstate as a valid regulation of a thing so...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT