Chap. 3 the commerce power and its federalism-based limits p.83
- (i) judicially enforced internal limits on the congressional commerce power, (ii) additional external limits deriving from federalism as in 10th and 11th amendment
Sec. 1. The commerce power before the new deal p.83
Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 189-190, 6 L. Ed. 23 (1824)
- examined whether a federal law that licensed ships to engage in the "coasting trade" pre-empted a NY law granting a 30-year monopoly to Livingston and Fulton to navigate the State's waterways by steamship ; Held that federal law preempted the NY law ; noted that ‘commerce' under Commerce Clause comprehend navigation
- established that Congress may control all local activities that "significantly affect interstate commerce," at 615
-
- the internal commerce of the States, the numerous state inspection, quarantine, and health laws, though having a substantial effects on interstate commerce, were not "surrendered to the general government"
- <10th amend and commerce clause> McCulloch shows two approach to 10th amendment, weak or strong ; the approach is related to approach to commerce clause
-
o “The wisdom and the motives of the grant, are points for which it is responsible to the people of the State only; they can never be drawn into discussion in this Court, nor come under the control of Congress”
-
o What if congress, though acting nominally within commerce power, has improper, undesirable, and harmful purpose
o “Political safeguards of federalism” - the political process of popular elections and citizens petitioning government provides the political means whereby national-state disputes may be resolved - the court need not take up the case, the court may be involved in the issue only if political process break down ; if political process put in place, resort to it ; the political process will fix the dispute between federal and state
o Justice Marshall stated the court did not have to look to congressional motive (intent) in case of commerce power
Veazie v. Moor, 55 U.S. 568, (1853)
- upholding a state-created steamboat monopoly because it involved regulation of wholly internal commerce
Kidd v. Pearson, 128 U.S. 1, (1888)
- upholding a state prohibition on the manufacture of intoxicating liquor because the commerce power "does not comprehend the purely internal domestic commerce of a State "
Congress could not regulate activities such as "production," "manufacturing," and "mining”
United States v. E. C. Knight Co., 156 U.S. 1, (1895)
- Sugar trust case ; the Court interpreted the statute not to extend to the challenged monopoly, based on the view that Congress could not constitutionally reach a monopoly in “manufacture” under the commerce clause
- Commerce succeeds to manufacture, and is not part of it ; manufacturing-commerce distinction
- A manufacturers’ combination controlling some 90% of the Nations’ domestic sugar refining capacity was held to be outside the reach of the Sherman Act ; indirect ; the mere attempt to monopolize the manufacture of sugar could not be regulated pursuant to commerce clause
Swift & Co. v. United States, 196 U.S. 375, 1905
- Ds, buyers of livestock for slaughterhouses, were accused of price fixing and other monopolistic practices in the cattle industry. The U.S. Supreme Court, finding that the Ds' conduct was commerce among the states as contemplated in the Sherman Act
- When cattle are sent for sale from a place in one State, with the expectation they will end their transit, (after purchase), in another State, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a constantly recurring course, it constitutes interstate commerce and the purchase of the cattle is an incident of such commerce. – “stream of commerce” rationale
Carter v. Carter Coal Co., 298 U.S. 238, (1936)
- Mining brings the subject matter of commerce into existence. Commerce disposes of it ; congress may not regulate mine labor because the relation of employer and employee is a local relation
Lottery Case, 188 U.S. 321, (1903)
- rejected the argument that Congress lacked power to prohibit the interstate movement of lottery tickets because it had power only to regulate, not to prohibit
Shreveport Rate Cases, 234 U.S. 342, (1914)
- A complaint was filed against the railroads, alleging that the railroads were discriminating against interstate commerce by charging higher rates for inter-state travel than for intra-state travel. The commission ordered the railroads to cease the discriminatory practice, … the court upheld the commerce court's order, rejecting the railroads' claims that because they engaged in intrastate as well as interstate commerce, congress lacked the power to regulate its rates.
- Congress may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intra-state operations to the injury of interstate commerce. – “affecting commerce”
- where the interstate and intrastate aspects of commerce were so mingled together that full regulation of interstate commerce required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation
Hammer v. Dagenhart, 247 U.S. 251, (1918)
- striking Act prohibiting shipment in interstate commerce of goods manufactured at factories using child labor because the Act regulated "manufacturing," not "commerce"
- the court … holding (i) that the Act attempted the federal government's regulation of a matter that was purely local ; (ii) that Act exceeded congress' authority under the Commerce Clause and invaded the states' reserved powers under the 10th Amend. ; (iii) that although there should be limitations upon the right to employ children in mines and factories in the interest of their own and the public's welfare, such regulation was reserved for the states
- (Maj.) The regulation at issue is not for regulating commerce, but pursue other policy goal, aimed at social and moral regulation ; (look into motive of Congress) ; it is social reform and is invalid
- (dissent) The power to regulate includes the power to prohibit
distinction b/w direct and indirect
A., L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, (1935)
- the Court struck down regulations that fixed the hours and wages of individuals employed by an intrastate business because the activity being regulated related to interstate commerce only indirectly ;
- congress may not regulate intrastate sales of sick chickens or the labor of employees involved in intra-state poultry sales
- Slaughtering of poultry in defendants' slaughterhouses within state and sales by defendants to retail poultry dealers and butchers within state, who sold directly to consumers, held not transactions in “interstate commerce” though almost all of the poultry originated outside the state, as respects validity of provisions of Live Poultry Code of Fair Competition for Metropolitan New York Area, promulgated by President under congressional authority and regulating wages and hours of employees and local sales. U.S.C.A.Const. art. 1, § 8, cl.3.
Carter v. Carter Coal Co., 298 U.S. 238, 1936 , p.93
- Federal statute regulating (i) maximum hours and minimum wages in coal mines, (ii) minimum and maximum prices for sales of bituminous coal – the Court held both invalid
(i), maximum hours and minimum wages in coal mines (= labor provision)
- Purpose of the federal statute
o Recital of the statute : general purpose to promote general welfare – “distribution of bituminous coal is of national interest, affecting the health and comfort of the people and the general welfare of the nation”
o Congress may not enact laws to promote the general welfare, entirely apart from those powers delegated by the Constitution
- The effect of labor provision
o The effect of the labor provision primarily falls on production, not on commerce ; production is purely local activity
o Production intended for inter-state sale and transportation has some effect upon inter-state commerce ; decisive inquiry is whether that effect is direct or indirect
o Whether the effect of a given activity is direct or indirect is not what is the extent of the local activity, or the extent of the effect produced upon inter-state commerce, but what is the relation between the activity and the effect
o The evils e.g. wages and working conditions, are all local evils over which the federal government has no legislative control
(ii) minimum and maximum prices for sales of bituminous coal (=price provision)
- inseverable from the labor provision, so invalid
- (dissent) the price provision is constitutional under commerce power ; but the suit is premature
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, (1937)
- upheld the National Labor Relations Act against a Commerce Clause challenge, ; departed from the distinction between "direct" and "indirect" effects on interstate commerce
- Held - (iii) that the Act applied to the employees who were engaged exclusively in production because intra-state activities that were closely connected to inter-state commerce were subject to regulation by Congress,
- (iv) that the Act did not violate the Fifth Amendment or the Seventh Amendment.
-
-
United States v. Darby, 312 U.S. 100, (1941)
- upheld the Fair Labor Standards Act ;
- the power of Congress over interstate commerce is not confined to the regulation of commerce among the states ; it extends to those activities intrastate which so affect interstate commerce or … as to make regulation of them appropriate means to the attainment of a legitimate end.
- issue was (1) whether Congress had constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages were less than a prescribed minimum or whose weekly hours of labor at that wage were greater than a prescribed maximum, and (2) whether it had power to prohibit the employment of workmen in the production of goods "for interstate commerce" at other than prescribed wages and hours.
The court held that
- the power of Congress under the Commerce Clause was plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution.
- Congress, having by the Act adopted the policy of (prohibiting shipment) excluding from interstate commerce all goods produced for the commerce which did not conform to the specified labor standards, could choose the means reasonably adapted to the attainment of the permitted end, even though they involved control of intrastate activities.
(DO- See. Carter v. Carter Coal Co., 298 U.S. 238, 1936 , p.93 - Federal statute regulating (i) maximum hours and minimum wages in coal mines, (= labor provision) - unconstitutional )
The Act’s purpose
The Prohibition of shipment of proscribed goods in inter-state commerce
- The prohibition of shipment in inter-state commerce of product manufactured in violation of minimum wages and working hours
- The power of Congress to prohibit transportation in interstate commerce include : stolen articles, convict-made goods, traffic in which restricted by the laws of the state of destination – here, none of the above fit into the article at issue
(The court)
- Congress, following its own conception of public policy, may exclude from inter-state commerce articles which it deems to be injurious to the public health, morals or welfare (DO- Congress may exclude from commerce articles which it deems to be at odds with its public policy)
- The power of Congress over inter-state commerce can neither be enlarged nor diminished by the exercise or non-exercise of state power ; Congress may regulate issue which state has not sought to regulate
(DO)
- Hammer v. Dagenhart, (child labor case), p.89 ; (Maj.) can’t create inter-state problem by banning ; (Dissent) ) The power to regulate includes the power to prohibit à.. here , the court change its opinion such that prohibition can create inter-commerce problem ?
- Carter v. Carter Coal Co., p.93 : Congress may not enact laws to promote the general welfare, entirely apart from those powers delegated by the Constitution à. The court change its opinion ? public policy seems to be general purpose
- Commerce Clause confers on Congress plenary power to regulate commerce, whatever motive or purpose, unless infringe constitutional prohibition
- The Constitution places no restriction on motive or purpose of regulation of interstate commerce ; the court has no control over the motive and purpose
- Hammer case was departure from the principles – so change
Validity of the wage and hour requirement
- Whether the employment, under other than the prescribed labor standards, of employees engaged in the production of goods for interstate commerce is so related to the commerce and so affects it as to be within the reach of the power of Congress to regulate it
- The power of Congress over inter-state commerce extends to activities intra-state which have a substantial effect on the commerce or the exercise of the Congressional power over it
- Congress, having by the Act adopted the policy of (prohibiting shipment) excluding from interstate commerce all goods produced for the commerce which did not conform to the specified labor standards, could choose the means reasonably adapted to the attainment of the permitted end, even though they involved control of intrastate activities.
- Here, suppression of the kind of competition is so related to and so affect the commerce
- Carter changed
- 10th amendment?
Wickard v. Filburn, 317 U.S. 111 (1942)
- upheld the application of the Agricultural Adjustment Act of 1938 to the production and consumption of homegrown wheat ; explicitly rejected earlier distinctions between direct and indirect effects on interstate commerce ; “ … if it exerts a substantial economic effect on interstate commerce …'
Jones & Laughlin Steel, Darby, and Wickard (cited from Lopez)
- ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause, because
- i) a great changes in the way business was carried on in this country – from local or at most regional in nature to national in scope
- ii) earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.
Katzenbach v. McClung, 379 U.S. 294, (1964),
- this Court upheld, as within the commerce power, a statute prohibiting racial discrimination at local restaurants, in part because that discrimination discouraged travel by African Americans and in part because that discrimination affected purchases of food and restaurant supplies from other States
Maryland v. Wirtz, 392 U.S. 183, (1968)
-
United States v. Lopez, 514 U.S. 549 , 1995, p.107
- In the Gun Free School Zones Act of 1990, (GFSZA) Congress made it a federal offense for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone ; Lopez, a 12th grade student, was convicted for knowingly possessing a concealed handgun and bullets at his high school
- Held - the GFSZA was invalid because it was beyond the power of Congress under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3.
Kennedy, concurring <judicial restraint + federalism>
- talking point of commerce clause was authority of state rather than authority of Congress
o the Court’s Commerce Clause decisions did not concern the authority of Congress to legislate ; rather the Court faced the question of authority of the State to regulate matters that would be within the commerce power had Congress chosen to act
- the imprecision of content-based boundaries
o (rejected majority’s content-based approach -- what is commerce, e.g. economic activity, substantial effect)
- the Court have an immense stake in the stability of our Commerce Clause jurisprudence
- the Court’s place in the design of the Government (judicial restraint)
- the significance of federalism in the whole structure of the Constitution
- four structural elements in the Constitution : separation of powers, checks and balances, judicial review, and federalism ; among them, only concerning federalism, there is much uncertainty respecting the role of the Judiciary in maintaining the federalism
- the Court developed workable standards regarding ‘separation of powers’ and ‘checks and balances’ ; regarding judicial review, Marbury v. Madison ; however, the role of the Judiciary in preserving the federal balance is more tenuous,
- the theory that two governments accord more liberty than one ; freedom was enhanced by the creation of two governments, not one ;
- "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch,,, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front … In the tension between federal and state power lies the promise of liberty " Gregory v. Ashcroft, 501 U.S. 452, (1991)
- "The Constitution divides authority between federal and state governments for the protection of individuals ; State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power'" New York v. U.S., 505 U.S. 144, 181 (1992)
- The theory requires (for its realization) two distinct and discernible lines of political accountability : one b/w the citizens and the Federal Government; the other b/w the citizens and the States
o those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function
o Were the Federal Government to take over the regulation of entire areas of traditional state concern, (areas having nothing to do with the regulation of commercial activities,) the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory
- Federal balance b/w national and state power is entrusted in its entirely to the political process (rather than the Judiciary)
o (DO- commerce power is a matter of federal balance b/w national and state power ; federal balance is entrusted to political process ; judicial restraint is called upon )
o The essence of responsibility for a shift in power from the State to the Federal Government rests upon a political judgment ;
o whatever the judicial role, Congress does have substantial discretion and control over the federal balance (DO- the court should give deference to Congress)
- the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far (DO- the judiciary as a last resort in preserving federal balance)
- as the branch whose distinctive duty it is to declare “what the law is” Marbury v. Madison,
o DO- if either nation or state power goes too far as to contradict (or violate) federal balance in the Constitution, it is illegal, the Judiciary must declare what the law is
- (In this sense) commerce clause has been the chief source of its adjudications regarding federalism
Here
-
o The statute (GFSZA) upsets (or restrict) the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, ; and, thus, our intervention is required
o DO- Congress seemed to tip the scale too far ; the Court must declare what the law is
-
o Federal balance has been violated by a formal command from the National Government directing the State to enact a certain policy, cf. New York v. U.S., 505 U.S. 144, (1992), or to organize its governmental functions in a certain way, cf. FERC v. Mississippi, 456 U.S. at 781 ; here, this is not the case
-
o education is a traditional concern of the States. Milliken v. Bradley, 418 U.S. 717, 741-742, (1974) ; DO- enforcement of criminal law also traditional concern of the State
o when intrusion upon an area of traditional state concern, strong connection with commercial concerns are required
§ See "… police powers of the States are not displaced by a federal statute unless that was the clear and manifest purpose of Congress" Rice v. Santa Fe Elevator Corp., 331 U.S. 218
§ DO- intrusion upon an area of traditional state concern is not necessarily unconstitutional ß the Fourteenth enforcement power includes authority … to intrude into ‘legislative sphere of autonomy previously reserved to the States ; The test under s.2 of 15th Amend. is the same as in all cases concerning the express powers of Congress, with relation to the reserved powers of the States ; à. Commerce power may intrude on an area of traditional state concern
-
o Strong connection with commercial concerns are central to the Commercial Clause
o Here, no such connection ; thus, the federal statute (interference with an area of traditional state concern) contradicts the federal balance
Thomas, Concurring,
- much of Art. I, § 8 would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce (DO- the two are Art. I, § 8, cl. 3. and Art. I, § 8, cl. 18)
- the additional problem - turning the 10th Amend. on its head ; Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution
- aggregation principle – it has no stopping point
Souter dissenting
- in reviewing congressional legislation under the commerce clause, we defer to congressional judgment that the legislation falls under commerce power, if there is rational basis for such finding
- next question is whether the means chosen by Congress are reasonably adapted to the end permitted by the Constitution
- judicial restraint comes from (i) respect for the competence of the Congress, (ii) congress political accountability (primacy of congress)
- nothing in the commerce clause compelled the judicial activism, and nothing about the judiciary made itself a superior source of policy on the subject Congress dealt with
- the Gun-Free School Zones Act operates in two areas traditionally subject to legislation by the States, education and enforcement of criminal law
- when commerce power speaks on any subject of traditional state concern, it depends on the Court’s view of the strength of the legislation’s commercial justification
- whether the legislative finding (judgment) is within the realm of reason
Breyer dissenting
- (1) the commerce power encompasses the power to regulate local activities insofar as they significantly affect inter-state commerce
- (2)
- (3)
o Thus, the question before us is not whether not whether the "regulated activity sufficiently affected interstate commerce," (rejected majority’s content-based approach) but, rather, whether Congress could have had "a rational basis" for so concluding
o However, the Court judge independently of congressional finding (or judgment)
§ DO- it is the courts which must say what the law is (Marbury)
§ "no formal findings were made, which of course are not necessary" Katzenbach v. McClung, 379 U.S. 294, 299, (1964) ; “Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666, (1994) (opinion of KENNEDY, J.)
o Congress need not specify the constitutional provision that authorizes its action
§ to subject States to suits for money damages, Congress need only make that intent clear, and need not refer explicitly to the Eleventh Amendment, Dellmuth v. Muth, 491 U.S. 223, (1989) (SCALIA, J., concurring) ; Congress need not recite the constitutional provision that authorizes its action, EEOC v. Wyoming, 460 U.S. 226, 243, (1983)
< question presented when applying three basic principles of commerce clause interpretation>
- whether Congress could have had a rational basis for finding a significant (or substantial) connection between gun-related school violence and interstate commerce ; here, answer is yes
-
- The challenged statue does not obliterate the distinction between what is national and what is local
- (1) this statute is aimed at curbing a particularly acute threat to the educational process and the use of life-threatening firearm (DO-not long-standing, not trivial)
- (2) immediacy of the connection b/w education and the national economic well-being
- (1) other supreme court cases, congressional action was upheld, though connection to inter-state commerce is less significant than the effect of school violence , e.g. McClung, Wickard,
- (2) majority makes distinction b/w commercial and non-commercial ; this approach runs contrary to the Court’s earlier warning not to turn questions of the power of Congress upon formula like ‘production’ or ‘indirect’
- (3) threatens legal certainty , there are many statute which is criminal and without jurisdictional language
United States v. Morrison, 529 U.S. 598, 2000, p.748 , p116
Fact
- female university student allegedly was raped by football players ; VA Tech discipline system did not punish the men ; she dropped out of school and sued the men under the challenged VAWA (Violence Against Women Act ) in federal district court for damages
- the challenged section of the VAWA provided cause of action, with gender motivated violence victim, against a person (perpetrator, not State), in federal court
Held
- the VAWA civil damage provision exceeds (i) Congress power to enforce the Equal Protection Clause against gender discrimination, and also (ii) Congress power under the Commerce Clause
o (DO- rape victim also sued VA Tech (State) to recover damage ; VAWA seems to abrogate state immunity to suit for damage ; VAWA seems to not meet congruence and proportionality ; thus, VAWA is unconstitutional on the ground of abrogating state immunity) à. I checked with VAWA ; VAWA is about suit against a person, not against State ; thus, in VAWA, state immunity is not an issue
- the powers of government is limited ; the powers of Congress is limited ; every law enacted by Congress must be based on its powers enumerated in the Constitution
o here, Congress invoked as basis the Fourteenth enforcement clause (s.5 of 14th Amend.) and commerce clause (s.8 of Art. 1)
-
-
o
-
There are three broad categories of activity that Congress may regulate under its commerce power:
- (1) first, Congress may regulate the use of the channels of interstate commerce;
- (2) second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities ;
o e.g. Southern R. Co. v. U.S, 222 U.S. 20, (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce)
- (3) finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce ;
o e.g. the regulation of intrastate coal mining (Hodel, 452 U.S. 264) ; intrastate extortionate credit transactions (Perez ) ; restaurants utilizing substantial interstate supplies (McClung) ; inns and hotels catering to interstate guests (Heart of Atlanta Motel) ; production and consumption of homegrown wheat (Wickard v. Filburn )
o Maryland v. Wirtz, 392 U.S. 183, (1968) the Court never declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities
- here, the question is whether the challenged section falls within the third category
- e.g. by conducting the third category analysis, Lopez held that the federal criminal statute which made it a federal crime to knowingly possess a firearm in a school zone, exceeded congress’s authority under the interstate commerce clause
- (i) the federal criminal statute (in Lopez) has nothing to do with economic activity
o A fair reading of Lopez shows that the non-economic, criminal nature of the conduct was central to the decision
o in every case where we have sustained federal regulation under the Wickard’s aggregation principle, the regulated activity was of an apparent commercial character (Wickard v. Filburn, 317 U.S. 111 ; the Court rejects Wickard’s aggregation rule)
o reject the argument that Congress may regulate non-economic violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce
- (ii) the federal criminal statute contained “no express jurisdictional element” which might limit its reach to a discrete set of firearm possessions that additionally have an explicit effect on inter-state commerce
o e.g. other provision “… interstate crime abuse .. against partners during interstate travel … “ was held constitutional
- (iii) neither the federal criminal statute, nor its legislative history, contains express congressional findings regarding the effects upon interstate commerce of (violation of the federal criminal statute) gun possession in a school zone
o Congress normally is not required to make formal findings, but such findings may help the court to evaluate the effect on inter-state commerce, when the effect is not visible to naked eye
o Congressional finding is not dispositive ; since Marbury, the Court has remained the ultimate expositor of the constitutional text
- (iv) the link between (violation of the federal criminal statute) gun possession and a substantial effect on interstate commerce was attenuated ,
o rejected the “costs of crime” and “national productivity” arguments ; because the but-for reasoning would permit Congress to regulate not only all violent crime, but also any activity that is related to the economic productivity of individualized citizens, including family law and other areas of traditional state regulation , and ultimately obliterate the distinction between what is national and what is local in the activities of commerce
- (v) legal uncertainty
o Congressional legislation under the Commerce Clause always will engender “legal uncertainty”
o It was the Judiciary’s duty “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, (1803)
here,
- (i) gender motivated crimes of violence is not economic activity ; possession of a gun in a local school zone is in no sense an economic activity
- (ii) no jurisdictional element ;
- (iii) numerous findings regarding the impact the gender-motivated violence has on victims ; but the congressional reasoning is based on the but-for reasoning ; it is the Court not congress which has the power to say what is law ;
- (iv) the regulation and punishment of intra-state violence (that is not directed at the instrumentalities, channels, or goods involved in inter-state commerce) has always been the province of the states (traditional state regulation)
o
§ Given (i) constitution’s careful enumeration of federal power, (ii) (10th Amend.) explicit statement that all powers not granted to the federal government are reserved
o Here, under federal system, remedy must be provided by the VA, not by the U.S.
** the Fourteenth enforcement clause analysis framework **
- The Fourteenth enforcement clause states that Congress may “enforce,” by ‘appropriate legislation’ the constitutional guarantee that no State shall deprive any person of ‘life, liberty or property, without due process of law,’ nor deny any person ‘equal protection of the laws.”
- It includes authority to “prohibit conduct which is not itself unconstitutional and to intrude into ‘legislative sphere of autonomy previously reserved to the States.’” ; However, the authority has limitation inherent in s.5 text and constitutional context
- the Fourteenth Amend., by its terms, prohibits only state action ; it erects no shield against merely private conduct
- here, the challenged section visit no consequence on VA public official involved in investigating victims’ assault, unlike Congress imposed voting rights requirement on States ,
- the prophylactic legislation under s.5 of the Fourteenth must have a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”
- here, the challenged section applies uniformly throughout the Nation, unlike remedy was directed only to those states in which there had been discrimination
(DO – like limited to literacy test, here, limited to gender-motivated violence)
Gonzales v. Raich, 545 U.S. 1, 2005 p.119
Question
- whether the power vested in Congress by Article I, § 8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law ,
reasoning
- Respondents do not dispute that passage of the CSA was well within Congress' commerce power ; Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority
- Rather, respondents challenge: that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause
-
-
- The similarities between this case and Wickard are striking
- In assessing the scope of Congress' authority under the Commerce Clause , … need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Lopez, 514 U.S., at 557, ( ? )
o Here, concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA
- Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. ; In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety ; this distinction is pivotal for … "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class"
Scalia, J., concurring
- (1) activities that merely substantially affect interstate commerce are not part of interstate commerce, and thus the power to regulate them cannot come from the commerce clause alone; (2) Congress' regulatory authority over intrastate activities that are not part of interstate commerce derives from the Constitution's necessary and proper clause (Art. I, § 8, cl. 18); and (3) where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not substantially affect interstate commerce.
O'Connor, J. , dissenting,
- (1) the majority sanctioned an application of the CSA that extinguished California's experiment without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, (if economic activity in the first place,) had a substantial effect on interstate commerce and was therefore an appropriate subject of federal regulation ; (2) in so doing, the court announced a rule that gave Congress an incentive to legislate broadly pursuant to the commerce clause, rather than with precision ; and (3) that rule and the result it produced in the instant case were irreconcilable with prior Supreme Court decisions.
Thomas, J., dissenting,
- (1) the local cultivation and consumption of marijuana by the two patients was not commerce among the several states ; (2) the CSA, as applied to the patients' conduct in question, was not necessary and proper for carrying into execution Congress' restrictions on the interstate drug trade; and (3) therefore, neither the commerce clause nor the necessary and proper clause granted Congress the power to regulate the patients' conduct in question.
