Commercial regulation in the United States: a constitutional perspective.

• Author: Montana, John C.
• Position: Legal

A constitution is a document that sets up and serves as the basis of a system of government. It describes the organization and function of the government, its permitted powers and duties, and limits power to engage in activities that its drafters deem unsuitable. Thus, the U.S. Constitution provides for a legislature, a chief executive, and a system of courts. It empowers the government to levy taxes, provide for the protection of intellectual property, wage war, and engage in a number of other activities.

The Nature of the Constitution

In the United States, as in most countries, the Constitution is the original source of law. The Constitution seems remote in that it offers no day-to-day guidance, advice, or prohibitions (or so it seems). Reading the Constitution seems to confirm this at first glance - there is a great deal of language setting up the Congress, the presidency, the courts, and a variety of technical administrative rules for each of these to follow in the performance of their duties. It authorizes armed forces, a census, and other miscellaneous items. There is also general language about commerce, taxes, and customs. So far as a first reading is concerned, most of the mundane governance - from tax regulation to recordkeeping to criminal statutes - is done by virtue of statutes or administrative rules, with little influence from the Constitution itself.

In actuality, every other source of law - statute, regulation, court case, or other - depends upon the Constitution's authorization and can only exist and operate insofar as it complies with the strictures of the Constitution and its attendant body of interpretive case law. Equally important are the constitutional limits on the power of the federal government.

The United States is a federation of 50-plus semi-independent states (including Indian nations and territories). The federal government has no inherent legislative power: "This government is acknowledged by all as one of enumerated powers." (McCulloch v. Maryland, 17 US [4 Wheat] 316, 4 L.Ed. 579 [1819]) The Constitution limits and enumerates the powers of federal authority: "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people." (US Const, Amend 10) In other words, any area not explicitly given to federal authority by the Constitution is an area where states have exclusive jurisdiction, and the federal government is powerless.

Constitutional Control of Commercial Activity

Despite this simple formula, there exists considerable tension between the federal and state governments regarding the extent of their respective domains. Consider the Constitution's interstate commerce clause: "Congress shall have power to regulate commerce with foreign Nations and among the several States and with the Indian Tribes." (US Const, Art I [section] 8) The quoted language is all there is to this clause, and it appears to have little substance and rather limited scope. However, this short sentence has had a profound impact on the development of commercial law (and a great deal of other law) in the United States.

How is this so? Congress, in passing laws and the courts, in interpreting this provision, have taken the position that anything which affects interstate commerce - even remotely - can be regulated by Congress. This frequently supercedes or eliminates the ability of the states to regulate in areas where the commerce clause is deemed to be in effect. This federal preemption is a matter of considerable consequence, since the 10th Amendment would otherwise preclude federal regulation in many of these areas.

Examples of subjects deemed matters within the scope of the interstate commerce clause are wage and hour provisions for stockyard workers (Stafford v. Wallace, 258 US 495, 42 S.Ct., 397, 66 L.Ed. 735 [1922]), racial discrimination at a barbecue restaurant (Katzenbach v. McClung, 379 US 294, 85 S.Ct. 377, 13 L.Ed.2d 290 [1964]), loan-sharking (Perez v. United States, 402 US 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 [1971]), and the growing of wheat for personal use (Wickard v. Filburn, 317 US 111, 63 S.Ct. 82, 87 L.Ed.2d 122 [1942]), among many others.

The federal government's ability to regulate within an area is significant because federal regulation means that a single, nationwide scheme may...