Typically, the powers listed in the Commerce Clause are divided into three sections:. Most discussions of how the Commerce Clause should be applied are focused on the Interstate Commerce Clause.
Generally, a person's view of the Commerce Clause is tied to their political leanings. Liberals, for example, often believe that this clause provides broad powers to the government, while conservatives believe the clause should be strictly interpreted so that the government's control of the economy will be limited. In the Constitution, the federal government is granted some powers. However, as stated in the Tenth Amendment, any powers not specifically delegated to the federal government are granted to the states.
When Congress passes laws that dictate the economic activity of states and their citizens, they will usually cite the Commerce Clause. Often, this deepens the disagreement related to how power should be balanced between the state and the federal government.
In the Constitution, commerce means commercial and business activities in every form that take place between citizens who reside in different states. This includes communications that are social in nature, including telephone calls, and people traveling between states whether it is for personal fulfillment or business.
When commerce takes place within the borders of a single state, this is known as domestic commerce. This can also be called intrastate commerce. State governments have complete control over this type of commerce. The case involved a challenge to Arizona's law prohibiting trains from crossing the state that contained more than 70 freight cars.
Southern Pacific complained that the law required them to choose between disassembling at the Arizona border larger trains, making two runs across the state, and then reassembling the trains or avoiding Arizona altogether.
Arizona argued the law was a safety measure designed to minimize the risk of "slack action" accidents to which longer trains are susceptible. The Court applied a test that balanced the state's safety interest against what it saw as the very substantial burden the law imposed on interstate commerce.
The law was struck down. The same test was used in to strike down an Illinois law requiring trucks to have contoured rear fender mudguards rather than the straight mud guard flaps required by most other states Bibb v Navajo Freight and in to invalidate a Wisconsin law that limited truck length to 55 feet at a time when most long haul truck lines had gone to 65 foot trucks Raymond Motor Transportation v Rice.
Oneida-Herkimer's solid waste management facility. In United Haulers Assoc. Justice Roberts, writing for the Court, concluded that the law not discriminatory because it did not favor a private in-state trash facility, but rather a government-owned facility, and therein lies a constitutional difference.
The burden of the "flow control" law, in the form of more expensive trash service, falls on in-state residents and could not be seen as an attempt to shift costs to out-of-state businesses. Because the law was deemed non-discriminatory, the Court applied its balancing test and found that the local benefits of the law effective financing of waste disposal and increased recycling outweighed the abstract harm on out-of-state businesses of removing waste processing services from the national marketplace.
Our last two cases deal with the "market participant" exception to Commerce Clause analysis. Concluding that South Dakota was acting as a market participant rather than as a regulator of commerce, the Court upheld the state's preference for in-state customers. Reeves was distinguished in S outh-Central Timber Development Inc v Wunnicke , which invalidated Alaska's policy of insisting that high-bidders on state-owned timber agree to process some of the timber they purchased at Alaskan sawmills.
The Court saw the bidding rules as an attempt to control commerce "down the stream," and that therefore the state was acting as a regulator, not as a mere market participant. Seelig Inc. South Dakota's preference for in-state buyers of cement from this plant was challenged in Reeves v State Southern Pacific train. The company successfully challenged New York's denial of its license to distribute milk collected in New York to Boston. Which interpretation of the Commerce Clause outlined in the introduction makes the most sense?
Was the Pennsylvania pilotage law involved in Cooley more likely enacted for safety reasons or for protectionist reasons? If, as the Court said in Marbury , it's the Supreme Court's job to say what the Constitution means, why should the Court defer to Congress when it comes to defining the reach of state power to regulate commerce?
Can you imagine a situation in which the Court might invalidate a state regulation of commerce when it had been specifically authorized by Congress? Baldwin makes clear that the Court will scrutinize carefully state laws that discriminate against out-of-state commerce? But how to we determine whether a law does discriminate against out-of-state commerce?
Should we look only at intent, or is a discriminatory effect enough? If a state like Minnesota or Wisconsin, with many small dairy farms, enacted a law that prohibited the sale within the state of "milk coming from cows with less than eighty square feet of stall space," would the law be constitutional?
The law might have been supported by some on animal welfare grounds, whereas other legislators might have seen benefits from reducing the inflow of milk from state such as California, where cows on "factory farms" are typically are afforded less space than on Minnesota and Wisconsin family dairy farms.
Should Edwards v California have been decided on Commerce Clause grounds? Is there anything to the argument that viewing the movement of migrants across state lines as commerce diminishes the importance of the right involved?
Do you agree that something with a negative value such as garbage should be considered an article of commerce? Do you think New Jersey's ban on the importation of out-of-state garbage was motivated by environmental concerns? Thus, the Court expanded Congress power over interstate commerce in a way that gave it power over the national economy. In the s, the Rehnquist Court treated these New Deal cases as the high water mark of congressional power.
In the cases of U. Lopez and U. Morrison , the Court confined this regulatory authority to intrastate economic activity. In addition, in a concurring opinion in Gonzales v. Raich , Justice Scalia maintained that, under Lopez , "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. Most recently, in the health care case of NFIB v. Sebelius , in , a majority of the justices found that a mandate to compel a person to engage in the economic activity of buying health insurance was beyond the powers of Congress under both the Commerce and Necessary and Proper Clauses.
The dispute over the breadth of the meaning of "commerce" turns, in large part, on the purposes one attributes to the clause, and to the Constitution as a whole, and what one thinks is the relevance of such purposes to the meaning of the text. At Philadelphia in , the Convention resolved that Congress could "legislate in all cases.
Convention 21 Max Farrand ed. This was then translated by the Committee of Detail into the present enumeration of powers in Article I, Section 8, which was accepted as a functional equivalent by the Convention without much discussion. Proponents of an expansive reading claim that the power to regulate commerce should extend to any problem the states cannot separately solve.
Those who support a narrower reading observe that the Constitution aims to constrain, as well as to empower, Congress, and the broadest reading of the Commerce power extends well beyond anything the framers imagined.
As the dissenters in the health care case observed, "Article I contains no whatever-it-takes-to-solve-a-national-problem power. For contrasting views of evidence on the original public meaning of the terms in the Commerce Clause, compare Randy E. Balkin, Living Originalism ; Randy E. As Professor Koppelman and my jointly-authored essay shows, abundant evidence—including what we know about slavery at the time of the Founding—tells us that the original meaning of the Commerce Clause gave Congress the power to make regular, and even to prohibit, the trade, transportation or movement of persons and goods from one state to a foreign nation, to another state, or to an Indian tribe.
It did not originally include the power to regulate the economic activities, like manufacturing or agriculture, that produced the goods to be traded or transported. We should follow the original meaning of this provision for the same reason we limit California to the same number of Senators as Delaware, notwithstanding the vast disparity between their populations, or limit the president to a person who is at least thirty-five years old, though some who are younger than thirty-five might make excellent presidents.
A written constitution is the law that governs those who govern us. And those who govern us— whether the Congress, the president, or the courts—can no more properly change the law that governs them without going through the amendment process of Article V, than can the people can change the speed limits imposed on them without going through the legislative process.
But such an oath would be meaningless if it was merely promising to obey whatever meaning a government official later wants the Constitution to mean.
I agree with Professor Koppelman that the Founders attempted to distinguish the problems that were best handled at the national level from those best handled by the states. But they did so by drafting a specific list of such powers, rather than leave it to the national authority to decide the scope of its own power.
Where later developments justify adding to these national powers, such expansion is properly handled by an Article V constitutional amendment, as the Constitution was once amended to give Congress the power to prohibit the intrastate economic activity of producing and selling alcohol. See the Eighteenth Amendment. Enforcing the original meaning of the Commerce Clause does not mean that other economic activities are free from any government regulation.
It merely means that the power to regulate all intrastate economic activities resides with each of the fifty states. Where national uniformity and coordination between states are desirable, these goals can be achieved by the Interstate Compacts Clause of Article I, Section 8, by which states may enter into agreements or compacts with another state or states, provided they have the consent of Congress.
Many such compacts exist. I identify some of the key advantages of decentralizing most law-making at the state level in my statement on Federalism. Here is a summary of my analysis there:. In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level.
And the United States has been a far more prosperous and contented country because of its federal system, though our system of federalism could stand to be bolstered.
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