American Constitutionalism in Historical Perspective (packet)

Interpretation: “commerce among the several states”

1. 
   Strict: goods going between the states. Cases later overruled.
   
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      Knight (p. 126-27): Court strikes down Sherman Anti-Trust Act b/c the application of CC to manufacturing b/c beyond the scope (ultra vires) of natl power. “Commerce succeeds to manufacture and is not a part of it.”
      
   2. 
      Carter Coal (p. 137): New Deal min wage legislation applied to coal industry struck down by court because ultra vires of natl power. (Overruled by NLRB v. Jones & Laughlin; Darby)
      
      1. 
         Subject Matter constraint: congress must actually be regulating the movement of goods in interstate commerce, here just a state industry and just production.
         
      2. 
         Qualitative constraints: focusing on local, rather than natl economy.
         
      3. 
         Mechanical jurisprudence: direct v. indirect effects of regulation. Can’t regulate goods prior to movement into interstate commerce. Relies on Schecter :wages/hrs of slaughterhouse employees which sold only to local poultry retailers w/n subject to fed control.
         
      4. 
         Dissent: Text and precedent d/n support this and ct should be open to changing moral views. Cites McCulloch and Gibbons.
         
2. 
   Broad: commerce affecting more states than one. Consistent with fed theory that this is in the province of Congress, no role for judiciary based on values of democratic process.
   
   1. 
      Gibbons v. Ogden: NY had given Livingston and Fulton exclusive rt to operate steamboats in NY waters. They licensed Ogden to operate ferry b/w NY and NJ. But Gibbons began operating steamboat service licensed under federal law. Ogden c/n get injunction and preserve monopoly. Fed license preempts state license for navigation b/c this is interstate commerce (b/w NJ and NY). No reason to strictly construe clause in favor of the states based on McCulloch.
      
   2. 
      Shreveport Rate (p. 166): Interstate transportation rates from La. to Texas was much higher than w/in Texas. Congress can apply rate regulation to purely intrastate activity. Argued that if no power to regulate at state level, businesses will just move from natl to state level and subvert interests of natl commerce. In order to regulate interstate rates we also have to regulate intrastate rates. Lower rates in intrastate railway will destroy interstate railway.
      
   3. 
      Southern Ry (p. 167): congressional law extended to purely intrastate railroad. Allowed b/c trains move on same tracks w/ interstate trains & could collide with them. If d/n extend will prejudice natl concern for safety in rail industry. Necessary & proper reasoning based on McCulloch.
      
   4. 
      Swift (p. 168): Congress applying Sherman Act to CO cattle industry. Allowed b/c would be absurd to economically isolate the cattle industry from the natl economy. Regulated as part of integrated economic unit b/c even if intrastate, it’s in the flow of commerce. Cattle are sent for sale from 1 state, w/ the expectation that they will wind up in another state.
      
3. 
   Broader: any business, commercial activity even among individuals.
   
   1. 
      NLRB v. Jones & Laughlin, 1937: involved natl legis applied to steel mfrs. Hughes disowns approach of Carter Coal. Mfring in states not immunized from congressional power as long as there is a reasonable relationship, quantitative, economic approach.
      
   2. 
      Darby (191): involved max hour/min wage law applied to lumber mfrs forbidding movement in interstate commerce of goods inconsistent with fed standards. Overrules Hammer, going beyond Holmes by applying standards to purely intrastate businesses. As long as regulating eco activity w/ a reasonable relationship to natl economy any purpose Congress entertains is OK.
      
      1. 
         Compelling purpose: if allow states to set their own standards may have race to the bottom, undercutting the natl interest. Does this allow a uniform law of marriage and divorce? (productivity ideal) No b/c out of realm of commerce
         
      2. 
         pp.145-46: Goods are in the flow of commerce and have connection w/ interstate goods as competitors. Overriding concern is anti-discrimination.
         
      3. 
         Overrules Carter Coal production distinction. Power of Congress extends to intrastate activities which have a SUBSTANTIAL EFFECT on interstate commerce or the exercise of the congressional power over it.
         
   3. 
      Wickard v. Ficker (p. 189): Natl legis regulating mkt price is applied to homegrown wheat. If d/n limit amount of wheat held back, could end up back on the market, undercutting natl market. Furthest reach of CC. Any eco activity anywhere can be regulated as long as in the aggregate it is related to a national purpose. Exceptions: police power of the state not usurped by commerce clause. Reserved power thought to include education, marriage, divorce, and custody.
      
   4. 
      Hammer v. Daganhart (p. 173): Legislation forbidding any goods to move in interstate commerce, which are the product of child labor. Struck down b/c c/n have natl govt undermining state controlled policy issues. Using eco means to regulate human rights matters is outside understanding of CC. S. Ct. reintroducing judicial constraints when relationship to eco activity is lacking and stepping on reserved state powers. (Rehnquist). .
      
      1. 
         Holmes criticized this decision as unprincipled since can regulate lotteries and alcohol at natl level. Choice among purposes (oppose liquor but accept child labor) not supported by precedents and hindering national power over real evils rooted in industry. (Overruled by Darby)
         
      2. 
         Some argue that ct s/n monitor what it believes to be the correct fed/state balance, leave it to politics to restrike balance using people’s perspective. (Breyer)
         
   5. 
      U.S. v. Lopez (p. 142): fed legis forbidding guns in school zones under the CC struck down as ultra vires by Rehnquist court b/c hasn’t crossed state lines. Kennedy notes that court has a role here since too tenuous a connection to interstate commerce. P. 157 O’Connor: National lobbying is stifling state concerns.
      
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