As we all stand in anticipation for Thursday’s ruling from the Supreme Court, some of you might be wondering just how it came to this.
One wonders if the Founders, when asked whether the Affordable Care Act’s individual mandate could be considered as part of the “Commerce Clause,” would be able to react with anything but pure shock. Whether it was Alexander Hamilton’s hope for “Active Commerce” as explained in Federalist 11, James Madison’s desire to facilitate import and export between States in Federalist 42, or George Mason’s similar hopes, clearly no one had in mind the extensive powers being debated today.
So what happened? Are we simply becoming better constitutionalists, as a recent Atlantic article might have you believe?
As it turns out, our understanding of the Commerce Clause has taken many different forms over the years. Regardless of which way the Court decides on Thursday, here are five landmark decisions that will help you make sense of the ruling:
1) Gibbons v. Ogden (1824) One of the original Commerce Clause cases, this involved a dispute between New Yorker Aaron Ogden and a man named Thomas Gibbons. Ogden was licensed as part of New York legislation granting exclusive right of steam boat navigation in New York waters. Gibbons was also operating a competing service within the waters between New York and New Jersey, but he was doing so as part of a Congressional law dealing with the coasting trade and fisheries.
The Court ruled in favor of Gibbons, a decision that set a couple of precedents. Firstly, it extended the meaning of “commerce” from buying and selling goods into areas like “navigation” of waters. Secondly, the Court’s understanding of “among the several States” was extended even to situations that may be “intermingled” with their interior boundaries. Finally, and importantly, it established the Federal government’s “plenary,” or superior, authority when in conflict with the State.
2) Champion v. Ames (1903) An act of Congress passed in 1895 – the Federal Lottery Act – made the transportation of lottery tickets across state lines illegal. Charles Champion, after attempting to move tickets between the states of Texas and California, objected to the law as an overstep of the congressional commerce power. After all, the federal government surely could not go so far as to prohibit commerce all together, right?
As it turns out, they could. In a 5-4 decision, the Court ruled that the government was fully within its constitutional bounds. There are two important takeaways here: First, the commerce power was found to be “plenary … complete in itself, and is subject to no limitations except such as may be found in the Constitution." Secondly, the federal government’s right to act as a moral enforcer, prohibiting lottery tickets because of the harmful effects of gambling on the public’s morality, was also upheld.
3) National Labor Relations Board v. Jones & Laughlin Steel Corp (1937) Jones & Laughlin steel was the fourth largest producer of steel in the United States. After a handful of their workers had made moves to unionize, the company fired ten employees. When the NLRB ordered, under the 1935 National Labor Relations Act, for the workers to be rehired, the company refused and asserted that the law was unconstitutional. After all, this was clearly a case of intrastate commerce, right?
In an incredibly important ruling – one heavily coerced by the court-packing schemes of Franklin Delano Roosevelt – the Court found 5-4 that the government’s actions were constitutional. This ruling was argued based upon the “significant” business that the Jones & Laughlin Steel Corp. engaged in throughout numerous states – clearly giving their business an “interstate” effect. Thus, while the case itself was intrastate, happening fully within a given state, the larger effects allowed Congress to regulate.
4) Wickard v. Filburn (1942) After the NLRB decision, a string of rulings would very quickly balloon the commerce power and the power of the federal government. Among these rulings, perhaps most importantly, was Wickard, or “the wheat case.” The US government had placed legal limits on the amount of wheat that a farmer could produce in order to try and drive up prices during the Great Depression. Claude Wickard, who had produced an excess of wheat, argued that all of the extra wheat had gone to personal use instead of being sent into the market – he had no intention of selling it.
The Court, in a unanimous decision, found against Mr. Wickard. The reasoning of this decision was rather important: even if Mr. Wickard was engaged in an entirely local and even non-commercial activity, his actions, when considered in aggregate (that is, if others did the same as he did), would produce a substantial effect on interstate commerce. As a result, the government’s commerce power could justly be applied to his case. This case was, and remains, one of the truly landmark decisions handed down by the Court.
5) Gonzales v. Raich (2005) Fast forwarding a few years, this case was actually decided quite recently. It involved defendant Angel Raich, who was allowed to produced and use medical marijuana under California law. The federal government, under the Controlled Substances Act, had made the possession and production of cannabis plants illegal – thus Raich was acting legally under state law and illegally under federal law.
The Court, in a 6-3 decision, ruled against Angel Raich. Heavily citing the precedent of Wickard, the Court found that the government could regulate “purely intrastate activity that is not itselfcommercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”
Unlike Wickard, Angel Raich was no actually a part of a market at all. It was a local, non-commercial activity that had no relation to a business owned by Raich. The simple fact that private marijuana possession could draw more (illegal) marijuana into the interstate market was enough.
So there you have it. I would also recommend a review of US v. Lopez, being one of the few times that the Court really put its foot down against the expansion of the commerce power.
This list is far from exhaustive, but it does demonstrate how far we have come from the Founder’s understanding of what interstate commerce meant. I would conclude by directing readers to a letter from Thomas Jefferson, in which he writes:
“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State… To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."
If history is any indication, he may be quite right.