o What is commerce? “commercial intercourse between nations and parts of nations”, included navigation
o What does “among the states” mean? among = intermingled with – concerns more than one state. Commerce among states cannot stop at the external boundary line of each state
• Under this view, Congress can’t regulate any kind of trade only in one state
What is the role of Tenth Amend? Marshall saying that once decided that Congress has the power, the power is plenary
i. What is Commerce?
Narrowly defined as one stage of business, separate and distinct from earlier phrases, such as mining, manufacturing, and production
Applying federal, antitrust law to sugar refining industry was unconstitutional b/c monopoly in production of sugar, not in commerce.
Court says they have to interpret the law narrowly b/c if not, it would give Congress too much power at the expense of the States
What is the role of the 10th Amendment? Even if activity was commerce and among the states, congress still could not regulate if it was intruding onto the zone of activities reserved for the states
Court finds Act uncons b/c it gives the fed a policing power b/c law is designed to protect health safety and welfare of kids ( this power should be in the state’s zone of power)
a. upholds a law prohibiting interstate shipment of lotter tickets b/c each state can still decide if it wants to have lottery within its state, but gov can regulate whether commerce can be polluted by carrying of lottery tickets from state to stat
b. **Hard to reconcile these two cases – possibly the Court was more willing to defer to moral than to economic regulations
What is “among the several states”?
1. RULE: Requirement of direct, substantial effect on interstate commerce
a. Line was hard to draw between direct and indirect effects
Court says that law that fed law preventing sellers from requiring buyers to buy an entire coop of chickens is uncons b/c not direct effect on interstate commerce, even though poultry was shipped to other states
b. Said code wasn’t not regulating interstate transaction, but concerned about operation of business in in NY
Fed law requiring max hour and min wages for coal mining industry is uncons b/c it is about the production, not commerce
a. Labor Relations Board found that Jones & Laughlin has violated NLRA act by discriminating against members of the union when hiring and deciding tenure and was intimidating employees in order to interfere with self-organization
b. Court upholds law and says that production can be a part of commerce
c. What about issue among the several state?
i. Some activities may be confined inside a single state when evaluated separately when looking at the bigger picture, those activities have such a close and substantial relationship to interstate activities that their control is essential in order to protect and preserve commerce
i. Congress has “plenary power” under the commerce clause
ii. Commerce Power is not confined to the regulation among state, but extend to intrastate activities which substantial affect interstate commerce and having lower pay/long hours, would effect it b/c it would give states not complying with the fed regulation an advantage b/c able to sell goods for lower price
iii. Overruled Dagenhart and rejected the view that the 10th amend limits Congress power – it is a truism
The Supreme Court has sustained congressional power to regulate any activity, local or interstate, that either in itself or in combination with other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.
Court held that Congress can control a farmer’s production of wheat for home consumption b/c cumulative effect of many instances of such production could be felt on the supply and demand of the interstate commodity mark
o Declared uncons Fair Labor Standard act which require mini wages to state and local employees for violated 10th b/c the law "operates to directly displace the State’s freedom to structure integral operations in areas of traditional gov functions
o SO held a law is uncons, even if valid under commerce clause, when Congress interferes when with traditional state and local government functions
o BUT court DID NOT define what is such a traditional function
o court held Usery only applied when Congress was regulating state governments not private conduct
o Congress cannot regulate "states qua state" (states being states)
Holds the "traditional governmental function" test found is National league of Cities v. Usery is unworkable and inconstant with established principles of federalism. It gives too much room for judicial discretion
Political process is the real check on congressional power against the states
Powell DISSENT: Argues the decision reduces the 10th amend to meaningless rhetoric when congress acts pursuant to the commerce clause. Says once elected, state rep becomes a fed employee and won’t look out for states, so political process is not enough protection of state sovereignty
Feels need to write separately just to say majority is so wrong, I don’t need to tell you how wrong you are
!!!!first time fed law ruled invalid under the 10th amend since National League of Cities!!!!
a. The Tenth Amendment of the Constitution is violated when Congress directs states to regulate in a particular field and in a particular way. The Constitution does not authorize Congress to commandeer the state legislative process by compelling states to enact and enforce a federal regulatory program.
The take title provision is Congressional coercion. The monetary and access incentives are a permissible exercise of Congressional spending power. The take title provision gave a state two options. Either the state could (i) take title to the waste and risk whatever liability that followed, or (ii) regulate the disposal according to the congressional mandate.
Either way, the state would be forced to implement the federal regulatory scheme and would be agents of the federal government.
!!!first time fed law uncons under commerce clause sine 1936!!!a. Rule/TEST: to be within Congress’ s power under the Commerce Clause, a federal law must either (Lopez):
1. Regulate the channels of interstate commerce - Example, ferries, interstate travelers
2. Regulate the instrumentalities of interstate commerce and persons and
things in interstate commerce; or
3. Regulate activities that have a substantial effect on interstate commerce.
Court can look at 1) if statute is economic or non-economic in nature [Most Important] 2) Jurisdictional requirement (or lack thereof) 3) Congressional findings (or lack thereof) [next case suggests congressional findings are not that helping in getting law upheld]
Can’t uphold Act b/c it is a criminal statute that has nothing to do with commerce, not essential part of economic regulations - Implication of gov argument (impact on economic activity and preventing to violent crimes) is no limit to fed power
Stevens - That guns are articles of commerce
Souter and Breyer
Accuse the majority of judicial activism b/c invalidating act from political branch. Want the question to be (as it has in the past) is there a rational basis/ reasonable adapted means test"
-Want "sufficient" effect not "substantial"
a. Even if there is no policy-making involved, Congress cannot take away a state’s sovereignty. Federalism mandates states remain independent from the federal government. Congress cannot circumvent that prohibition by conscripting the State's officers directly
a. Rule: “while we need not adopt a categorical rule against aggregating the effects of any non-economic activity, thus far in our Nation’s history, our cases have upheld Commerce Clause regulations of intrastate activity only where that activity is economic in nature”
The majority says that: if accepted, petitioner's reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effect on employment, production, transit or consumption
i. Even though there is a lot of congressional findings, "simply b/c congress may conclude that a particular activity substantially affects interstate commerce does not necessity make it so"
Souter Dissent - Even accepting Courts decision in Lopez, this one is different b/c of the mounds of data here to show substantial effect on interstate commerce (b/c victims often drop out of school/can't hold a job)
says the rational basis review should still be used (like before Lopez)
Law is constitutional!
Facts: Act regulates the disclosure of personal information. Acts doesn’t apply solely to states, but also to private individuals that have obtained info from a state DMV. Act conflicts with SC law. Condon alleges that the DPPA violates the 10th and 11th amendi.
This case is not governed by NY or Printz. It is governed by SC v. Baker because the DPPA does not require the legislature to enact any laws (NY) and does not require state officials to assist in the enforcement of federal statutes regulating private individuals (Printz).This act does not require the states to regulate own citizens.
Regulates the states as the owners of the databases. Doesn’t require SC leg to enact any laws or regulations and does not require state officials to assist in enforcement of fed state regulating private individuals
Intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact
Congress can not regulate economic inactivity
Individual mandate was an uncons exercise of the commerce clause powers b/c Congress may regulate economic cavity that taken cumulatively has substantial effect on interstate commerce, BUT the mandate regulated inactive - those not engaged in commerce.
Dissent - disagreed that it was regulating "inactivity". Said the everyone receives healthcare