Commerce Clause  pg. 82-90  pg.

129-143

Gibbons v. Ogden
 Affirmative commerce clause  scope of Congress’s authority to pass laws regulating interstate commerce.
o Economic unity  national market free of internal trade barriers
o Political unity  economic barriers lead to political barriers that threaten the Union
 Is regulating steamboats within the affirmative power of Congress Under Article I?

 Dormant commerce clause  judicial doctrine concerning the extent to which states can regulate interstate commerce,
in areas where Congress has not acted.
o If regulating steam boats is within federal commerce power, does that mean the states are excluded from
regulating it?
 Preemption cases  Where Congress has acted, here to grant a license to Gibbons, does that affirmative act exclude the
states’ concurrent regulatory power?

Wilson v. Black bird creek

 National power to regulate interstate commerce is exclusive of the states.
 The court distinguishes between regulation of interstate commerce, which is barred and police regulations designed to
enhance public health, safety, and welfare.

Not about the scope of Congress’s power, but rather about the scope of state power to regulate
interstate commerce.
Pre 1937 doctrinal framework:
1. Commerce vs. Police Regulation  Marshall Court suggested that Congress’s power over commerce regulation might be
exclusive, (Gibbons), but that the States retained authority to engage in police regulation. (Wilson)

2. Local vs. National  Taney Court, Federal and State powers concurrent with respect to local issues, but federal power
exclusive over subjects national in nature, or only fit one uniform system.

3. Direct v. Indirect  applied to distinction to adjudicate both the questions in Gibbons: Scope of Congress’s power and
the scope of the field from which the states are excluded. Breaks down during new deal.

There is a problem of indeterminacy with formation of judicial doctrine.

Dual federalism (divide the world into two separate spheres of regulatory jurisdiction)
Ex. Federal government has exclusive authority over foreign affairs and states have exclusive authority over family law.
 Concurrent jurisdiction (both state and federal authority regulate most subjects) Ex. Both the States and the Federal
government may regulate most commercial activity, but federal law prevails under supremacy clause

Gibbons and Wilson are both Dual federalism cases

Economic regulation  Congress is trying to regulate somewhat more broadly than strictly commercial transactions involving
more than one state.  E.C. Knight and Shreveport rate cases.

 E.C. Knight  Feds can’t stop merger  Makes distinction of “manufacturing vs. Commerce”: the court limits commerce
to buying and selling; making the product (refining the sugar) is manufacturing  2nd distinction “direct vs. indirect”:
effect on price of a monopoly in production may be large, but it is indirect in nature.

 Shreveport rate cases  Upheld regulation of intrastate railroad rates by the Interstate Commerce Commission. 
Realist approach  recognizing the economic reality of an integrated interstate and intrastate transactions of carriers
are so related that the government of one involves the control of another.

Social regulation  Congress is trying to achieve certain social or moral ends through banning interstate transportation of
certain people or goods.  The lottery case; Hammer v. Dagenhart

 Hammer v. Dagenhart  Act exceeds commerce power  Congress is using commerce as a hook to achieve a goal
outside its enumerated power.  “I don’t want to ride in a car made by my 13 year old child  formalist approach;
Justice Holmes famous dissent: If an act is within the powers specifically conferred upon Congress seems to me that it is
not made any less constitutional because of the indirect effects that it may have, however obvious it may be that it will
have those effects.
 A.L.A Schechter Poultry Corp.  takes us into the new deal period  law is unconstitutional  two distinct problems:
1) law delegates too many lawmaking powers to the President and to private bodies; separation of powers issue. 2) law
falls outside the limit of the Commerce Clause  Congress can’t regulate indirect effects  Cardozo concurrence: “A
society such as ours ‘is an elastic medium which transmits all tremors throughout its territory: the only question is of
their size.”  wants to draw line somewhere or give up on idea of limited and enumerated federal power.

NEW DEAL CRISIS (1937):

Aim to restructure the government as an answer to the depression.

FDR justifies a need for change at the Supreme Court with 3 points:
1. There’s a national emergency that requires national action
2. The Court’s standing in the way
3. What the Court is doing is not mandated by the Constitution.
FDR concludes that the Court is just doing politics. This is an example of the Frankfurter Constraint in action.

Federalism: Jones & Laughlin Steel Corp.  Court’s attempt to use the Commerce Clause as a tool to protect free market and
strike down attempts at government regulation.  Court upholds the statute  this turns on the degree of impact  work
stoppage impact would be too massive to be described as indirect, affects interstate commerce.

CONSTRAINTS (Frankfurter)

Thornton  The issue of representation  Amendment 73 is unconstitutional  Issue: whether States may add to or alter the
qualifications for federal legislative officer enumerated in the Constitution  Qualifications clause: age, citizenship, and
residence qualifications for the house and senate.  States cannot add qualifications to the list  10a issue  majority rule: If
the Constitution doesn’t affirmatively give the States the power to limit the terms of federal representatives, the States don’t
have that power.

Garcia  Traditional governmental functions test is unworkable  you cannot limit the States by carving out areas of
authority  Justice Blackmun  too indeterminate  Any rule of state immunity that looks to the traditional integral, or
necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which
state policies it favors and which ones it dislikes

New Deal Crisis

Federalism: Wickard  Act is constitutional  two aspects to this question: 1) Filburn is just one guy; 2) Filburn isn’t going to
sell his wheat.  Aggregation principal, all instances of similar activity is aggregated to evaluate substantial effects.  Broad:
holding: allow Congress to regulate any non-commercial activity that impacts commercial activity  Narrow holding: activity
part of production of goods for market.

Commerce Power pg. 266

United States v. Lopez  Statute exceeds Congress’s power under the commerce clause  3 areas that, under the
modern cases Congress can regulate  1) Congress may regulate the use of the channels of interstate commerce. 2) Congress
may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce. 3)
Congress may regulate activity having a substantial relation to interstate commerce (activities that have a substantial effect on
interstate commerce).  Rational basis for review  Aggregation principle from Wickard applied
Gonzalez v. Raich  Controlled Substances Act allows congress to regulate the medicinal use of homegrown marijuana  May
be a political preference in this case  When national power helps a conservative cause (war on drugs), the conservative
court upholds it.  Generality problem  the more general we define the activity, the more plausible it is that Congress can
regulate it.  “Congress may regulate non-commercial activity as “an essential part of a larger regulation of economic activity.”

Commandeering
NY v. U.S.  Waste Policy Amendments Act of 1985  three incentives: 1) Monetary, 2) Access incentives, 3) The take title
requirement.  The take title provision clause is unconstitutional  Could Congress act on individuals directly and the states?
 Majority rejects the argument that both means should be available: a) Historical experience was that regulating the States
didn’t work very well and caused friction. B) Regulating through the states blurs lines of political accountability.  This case is
deals with Legislative commandeering.

Printz v. United States  This case deals with Executive commandeering  Interim provisions impermissibly commandeer
state executive officials.  Uses NY as precedent but doesn’t necessarily govern because NY dealt with commandeering of
state legislatures  The court should limit the anti-commandeering doctrine to situations in which state officers are being
asked to make policy.

**When Congress legislates, it depends on the Executive for enforcement. This dependence is an integral part of checks and
balances. But if Congress can use state officers, then it’s not dependent on the federal Executive any more.

Sovereign Immunity

Dormant Commerce Clause

Dormant Commerce Clause  The negative implication of Congress’s power over interstate commerce that limits the States’
corresponding authority over that commerce.
Modern Framework: Anti-discrimination rule  Where states discriminate against interstate commerce, such statutes are
virtually per se invalid; and the balancing test  Non-discriminatory laws that incidentally burden interstate commerce are
subject to a balancing test that weighs the legitimate local interests against the impact on interstate commerce.

The Market Participant Rule  States are not subject to dormant Commerce Clause constraints when they are operating as
participants in a market rather than regulators of the market.

Philadelphia v. New Jersey  Basic rule against discrimination  “Where a state engages in ‘simple economic protectionism,’
a virtually per se rule of invalidity has been erected.”  A law blocking the flow of interstate commerce at a State’s border is
the clearest example of such a law.

Kassel v. Consolidated Freightways Corp.  Court says Iowa’s law is unconstitutional  State argued that it was a safety
provision  Primary interest of Trucking companies is increased costs  Court says you can’t just invoke safety  You must
weigh the extent to which the state law furthers safety against the burden on interstate commerce.  Any state safety
regulation more stringent than that of the state’s neighbors incidentally deflects interstate commerce to the neighboring state.
 To weigh interests  Flip the interests on one side – like when the plurality in this case, says that safety actually cuts
against the state.

South Central Timber v. Wunnicke  Market participant doctrine  Two issues 1) did congress authorize Alaska’s policy by
statute? 2) Does Alaska’s policy fall within the “market participant” exception to the dormant commerce clause?  Alaska is a
participant in the timber sales market, not the timber processing market. This is a downstream restriction  Plurality decision

NOT A DORMANT COMMERCE CLAUSE CASE

United Bldg. & Constr. Trades Council v. Camden  Privileges and Immunities Clause applies  Market participant exception
applies  this is not a dormant commerce clause case  Privileges and Immunities clause applies to municipal ordinances as
well as state laws.  Court’s argues that New Jersey residents from outside Camden will represent the interests of out-of-
staters

Metropolitan Life Ins. Co. v. Ward  Equal protection clause  Rational basis applies: Discrimination is OK if it is a rational
means to accomplish a legitimate state purpose  ONLY case where the Court used the equal protection cause to strike down
a discriminatory restriction on interstate commerce.  Equal protection applies to corporations, but Privileges and
Immunities clause doesn’t.

Preemption
Pacific Gas  the state regulations are not preempted  three kinds of preemption: 1) Express preemption in the statutory
text 2) Field preemption where the scheme of federal regulation is so pervasive that we infer Congress intended no state
supplementation 3) Conflict preemption where compliance with both federal and state regulations is a “physical impossibility”
or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress
 Possible fourth kind 4) Frustration preemption occurs where state law does not conflict directly with a federal statute, but
it would unduly frustrate the purposes of that statute to permit concurrent state regulation. This may simply be a form of
conflict Preemption.