National Police Power

Author:Michael Asimow

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The "national police power" is not, strictly speaking, a constitutional power of Congress. Rather, it is a phrase describing the power of Congress, acting under the enumerated powers, to enact "police legislation." The term "police legislation" includes criminal law as well as health, morals, safety, antidiscrimination, and environmental statutes.

Under our federal system, national police power regulation has always been controversial. Police matters are historically state or local concerns, and yet some problems seem to call for a national solution. The recurring issues, therefore, are whether Congress should address a problem that has historically been attacked at the state or local level and whether the courts can articulate any principled limits on congressional power to do so.

The Constitution provides a number of sources of power for national police legislation. The most important are the congressional powers to regulate commerce, to tax, and to spend. However, several other powers should not be overlooked. The postal power makes possible laws to protect consumers from fraudulent or obscene materials transmitted through the mails, subject to significant First Amendment limitations. The enabling clauses of the THIRTEENTH and FOURTEENTH AMENDMENTS open the way for a variety of antidiscrimination laws. (See JONES V. ALFRED H. MAYER CO. (1968), racial discrimination in housing; UNITED STATES V. GUEST (1966), violence against minorities in the use of public facilities.)

Because such local activities as manufacturing or gambling are not themselves interstate commerce, they are not, without more, subject to federal commerce clause regulation. However, constitutional developments during the twentieth century have marked out two techniques which, alone or in combination, permit virtually unlimited regulation of local activity under the aegis of the COMMERCE CLAUSE : prohibition of INTERSTATE COMMERCE and linking a local activity to an "effect" on interstate commerce.

A few early statutes prohibited particular forms of interstate commerce (such as transportation of diseased cattle or use of unsafe locomotives) because they physically endangered the stream of commerce. In 1895, however, Congress took a further critical step by prohibiting the interstate transportation of lottery tickets. Transportation of the tickets harmed nobody; Congress was obviously concerned that the use of the tickets in the receiving state was harmful to public morals. Thus the prohibition on transportation really was a technique to assist the states in stamping out national (or international) lotteries. Under traditional assumptions, of course, the regulation of gambling or of consumer fraud was a state responsibility, but individual state regulation of lotteries had proved ineffectual.

In CHAMPION V. AMES (1903), often referred to as "The Lottery Case," the Supreme Court upheld the federal statute by a 5?4 vote. The majority believed that the shipment of articles in interstate commerce that were harmful to the public safety or morals was a "misuse" of commerce, the prohibition of which lay well within the commerce power. This rationale paved the way for many later statutes which treated various goods or persons as "outlaws" of commerce and thus prohibited their shipment. For example, the courts upheld regulation or prohibition of interstate transportation of adulterated food, prostitutes, obscene literature, and stolen cars upon the authority of Champion. In addition, the Court upheld statutes banning the interstate shipment of items (such as liquor or goods produced by convict labor) that violated the laws of the receiving state.

In addition to permitting regulation of interstate transportation of goods, Champion provided authority for regulation of the use of the goods after they arrived. Finally, although most of the commerce-prohibition cases involved regulation of purely commercial activity, the Court in Caminetti v. United States (1917) found no constitutional objection to punishing a man for transporting a woman to whom he was not married across the state lines for immoral, but wholly noncommercial, purposes. (See HOKE V. UNITED STATES.)

The usefulness of the commerce-prohibiting technique suffered a temporary but sharp reverse after Congress decided to use it for the purpose of abolishing child labor. In HAMMER V. DAGENHART (1918) the Supreme Court held that Congress could not prohibit the transportation in interstate

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commerce of goods made by children, because the goods were lawfully produced in the state of origin and harmless both to interstate commerce and to users in the receiving state. The government tried to show that the law was necessary to achieve fair interstate competition, because states allowing child labor had an unfair advantage over those prohibiting it. The Court said that Congress had no power to equalize comparative advantages or disadvantages among the states.

Justices OLIVER WENDELL HOLMES'S dissent in...

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