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United States Constitution
PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty
to ourselves and our Posterity, do ordain and establish this Constitution
The Commerce Clause
| Introduction | Important Cases | |
|---|---|---|
| As James Madison stated, “[T]he powers delegated by the proposed Constitution to the federal government are few and defined.” One of these so-called ‘enumerated powers’ is found in the Commerce Clause. The clause itself includes a few distinct powers, giving Congress the ability “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” However, as the authority to legislate regarding international commerce or commerce with Native Americans has not been of great controversy, when speaking about the Commerce Clause, it is almost always understood to mean simply the following words: “To regulate commerce…among the several states.The problem, though, has been the lack of clarity surrounding the terms in the clause. What, exactly, is “commerce”? What does commercial activity “among the several states” actually mean? Some Justices have viewed these terms in their narrowest senses. For example, Justice Thomas has said that “[a]t the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes.” To Justice Thomas, the Commerce Clause only governs these specific actions, as well as only when those actions explicitly reach across state lines.However, generally, the Commerce Clause has been given a more expansive interpretation. In the all-important case of Gibbons v. Ogden (1824), the Court took up the case of those challenging a New York law that gave a monopoly to certain individuals for the operation of steamboats within the state. The challengers were attempted to secure their own license for a steamboat route between New York and New Jersey, pursuant to a federal law that allowed such licenses to be given. The Court could have narrowly interpreted the Commerce Clause. The Court could have held that “commerce” did not include navigation along water routes; and the Court could have held that “among the several states” did not include intrastate waterways – or even routes between one state and another where one state was regulating its own territory.However, the Court did not give the clause a narrow interpretation. Instead, in an opinion written by Justice Marshall, the Court held that “commerce” includes “commercial intercourse” and any actions that may fall under that broad category, and the Court also held that “among the several states” means “intermingled with.” The Court was emphatic that “[a] thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.” Gibbons, therefore, stood for the proposition that the Commerce Clause was not as narrow of a power as it could be. Moreover, along with the Supremacy Clause, this meant that Congress could override any state statutes regulating the same commercial issue as the federal government (see also Dormant Commerce Clause).Jurisprudence surrounding the Commerce Clause has developed since the days of Gibbons v. Ogden (1824). It has gone through periods where it was given a more or less narrow interpretation. But today (this is largely taken from United States v. Lopez (1995), see below), it is generally understood to certainly allow Congress to regulate (1) channels of interstate commerce (like roads, railroads, air routes, and rivers), (2) instrumentalities of interstate commerce (like cars, trains, planes, and boats), and (3) persons of interstate commerce (like drivers, conductors, and pilots). Fourth, the Commerce Clause also grants Congress the power to regulate intrastate (meaning, within a single state) commerce, provided the commercial action in question substantially affects interstate commerce.It is this last piece that has been, and continues to be, the subject of the most debate. When measuring the substantiality of interstate commerce, the Court will look to a number of factors, including whether or not the activity in question can be labeled “economic,” whether there are Congressional findings on the issue that lend to the argument that this activity has some impact on interstate commerce, whether considering the activity to be economic in nature is attenuated and only the result of a piling on of inferences, and whether the issue is a traditional state or federal concern.What follows are three crucial cases that impact the modern understanding of the Commerce Clause. | Gibbons v. Ogden (1824) United States v. Lopez (1995) |
| Important Cases in Commerce Clause Jurisprudence | Important Cases | |
|---|---|---|
| In Heart of Atlanta Motel v. United States (1964), the Court again turned to a subject that it had dealt with in the past: whether Congress could pass laws restricting the ability of private individuals, running private businesses, to discriminate on the basis of race. In this case, a hotel that was near major interstate roadways – and whose patrons came mostly from out of state – prohibited African Americans from staying in its guest rooms. This, however, was in direct contradiction with the 1964 Civil Rights Act, which did not allow such action. The hotel argued that Congress could not force it to accept clients it did not want to accept, noting that the Equal Protection Clause (here, of the 5th Amendment), only applied to government actors. While the Court accepted the argument that the Reconstruction Amendments (13, 14, and 15) did not give Congress the authority to regulate such action, it still sided against the hotel, using the Commerce Clause. The Court held that, given the nature of hotels, especially those like the Heart of Atlanta Motel, restricting the availability of rooms for African American travelers would have a detrimental affect on interstate commerce. Therefore, the hotel could not defy the Civil Rights Act, and had to accept patrons irrespective of race.One of the most important cases from recent decades was United States v. Lopez (1995), in which, for the first time in modern history, the Court did not allow Congress to make a particular law using its Commerce Clause powers. In that case, Congress had passed a law outlawing guns within certain distances of schools. The Court, however, did not accept the government’s argument that such a regulation involved interstate commerce. Though individual states – not being bound to particular powers given to them in the U.S. Constitution – may pass such laws, Congress may not. But though that statute, as it was written, was held unconstitutional by the Court, Congress amended the law to only affect guns that have “moved in or that otherwise affect[s] interstate or foreign commerce.” While this may appear merely to be semantic change to appease the Supreme Court, this new version of the law has been upheld numerous times in the lower courts, and never challenged in the Supreme Court. But Lopez has been used by the Court in subsequent cases to further restrict Congress’ power under the Commerce Clause.However, the Court has not consistently invalidated Congressional acts under the Commerce Clause since Lopez. For example, in the contentious case of Gonzales v. Raich (2005), the Court upheld a federal law prohibiting the production of marijuana (even where allowed by particular states under medical marijuana statutes), accepting the government’s argument that the regulation of marijuana affected interstate commerce in that such a law affects the national marijuana market. | Boynton v. Virginia (1960) Heart of Atlanta Motel v. United States (1964) Katzenbach v. McClung (1964) United States v. Lopez (1995) United States v. Morrison (2000) Gonzales v. Raich (2005) |
| The Commerce Clause and the Affordable Care Act | Important Cases | |
|---|---|---|
| This background, then, formed the foundation for the much of the debate surrounding the Patient Protection and Affordable Care Act of 2010, or as it sometimes known, Obamacare. This Congressional statute changed healthcare law in the United States in several important ways; but the most controversial provision of the bill, in both popular and legal circles, was the so-called “Individual Mandate.” This section of the law required those without health insurance, but with the means to purchase health insurance, to either do so – or pay a certain amount of money.This act was challenged in court; and the government, among other arguments, asserted that Congress had the ability to pass this law under the powers given to it under the Commerce Clause. The argument was that the cost of health insurance was high and increasing. According to the government, this cost was in large measure due to people who choose to not purchase insurance. Invariably, many of these individuals get sick and have no recourse but to seek medical care in emergency rooms, where costs can be relatively high. Moreover, without insurance, many of these patients are stuck with ER bills they can’t pay – meaning, hospitals are stuck with bills that aren’t being paid. Therefore, to cover these losses, hospitals are forced to raise prices for everyone, driving up the cost of healthcare for all, even those that have purchased insurance.This argument, that the inaction of not purchasing health insurance could be regulated by Congress, was rejected by the Supreme Court in <National Federation of Independent Business v. Sebelius (2012). There, Chief Justice John Roberts, writing for the majority, did not accept the assertion that the Commerce Clause afforded the federal government the power to regulate inactivity. According to the Chief Justice, “The power to regulate commerce presupposes the existence of commercial activity to be regulated.” Not doing something could not be prohibited by Congress.However, the law was still mostly upheld (including the Individual Mandate) under Congress’ Taxing and Spending Power, also one of the enumerated powers in Article I, Section 8. | National Federation of Independent Business v. Sebelius (2012) |
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