Federal Police Power

Federal Police Power.—A year before Collector v. Day was decided, the Court held invalid, except as applied in the District of Columbia and other areas over which Congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils.16 The Court did not refer to the Tenth Amendment. Instead, it asserted that the "express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."17 Similarly, in the Employers' Liability Cases,18 an act of Congress making every carrier engaged in interstate commerce liable to "any" employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided Court, without explicit reliance on the Tenth Amendment. Not until it was confronted with the Child Labor Law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the Court hold that the state police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. In Hammer v. Dagenhart,19 five members of the Court found in the Tenth Amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the States. This decision was expressly overruled in United States v. Darby.20

16 United States v. Dewitt, 76 U.S. (9 Wall.) 41 (1870).

17 Id. at 44.

18 207 U.S. 463 (1908). See also Keller v. United States, 213 U.S. 138 (1909).

19 247 U.S. 251 (1918).

20 312 U.S. 100 (1941).

During the twenty years following Hammer v. Dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. Excise taxes on the profits of factories in which child labor was employed,21 on the sale of grain futures on markets which failed to comply with federal regulations,22 on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,23 and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the Federal Government,24 were all found to invade the reserved powers of the States. In Schechter Corp. v. United States,25 the Court, after holding that the commerce power did not extend to local sales of poultry, cited the Tenth Amendment to refute the argument that the existence of an economic emergency justified the exercise of what Chief Justice Hughes called "extraconstitutional authority."26

In 1941, the Court came full circle in its exposition of this Amendment. Having returned four years earlier to the position of John Marshall when it sustained the Social Security Act27 and National Labor Relations Act,28 it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States v. Darby.29 Speaking for a unanimous Court, Chief Justice Stone wrote: "The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or non-exercise of state power… It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states… Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered."30

21 Child Labor Tax Case, 259 U.S. 20, 26, 38 (1922).

22 Hill v. Wallace, 259 U.S. 44 (1922). See also Trusler v. Crooks, 269 U.S. 475 (1926).

23 Carter v. Carter Coal Co., 298 U.S. 238 (1936).

24 United States v. Butler, 297 U.S. 1 (1936).

25 295 U.S. 495 (1935).

26 Id. at 529.

27 Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

28 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

29 312 U.S. 100 (1941). See also United States v. Carolene Products Co., 304 U.S. 144, 147 (1938); Case v. Bowles, 327 U.S. 92, 101 (1946).

30 312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v. Wiener, 326 U.S. 340, 362 (1945).

But even prior to 1937 not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the States had been held invalid. In Hamilton v. Kentucky Distilleries Co.,31 a unanimous Court, speaking by Justice Brandeis, upheld "War Prohibition," saying: "That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is nonetheless true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power."32 And in a series of cases, which today seem irreconcilable with Hammer v. Dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets,33 of women for immoral purposes,34 of stolen automobiles,35 and of tick-infected cattle,36 as well as a statute prohibiting the mailing of obscene matter.37 It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,38 to subject prison-made goods moved from one State to another to the laws of the receiving State,39 to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment,40 and to control extortionate means of collecting and attempting to collect payments on loans, even when all aspects of the credit transaction took place within one State's boundaries.41 More recently, the Court upheld provisions of federal surface mining law that could be characterized as "land use regulation" traditionally subject to state police power regulation.42

31 251 U.S. 146 (1919).

32 Id. at 156.

33 Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).

34 Hoke v. United States, 227 U.S. 308 (1913).

35 Brooks v. United States, 267 U.S. 432 (1925).

36 Thornton v. United States, 271 U.S. 414 (1926).

37 Roth v. United States, 354 U.S. 476 (1957).

38 United States v. Ferger, 250 U.S. 199 (1919).

39 Kentucky Whip & Collar Co. v. Illinois C. R.R., 299 U.S. 334 (1937).

40 Everard's Breweries v. Day, 265 U.S. 545 (1924).

Reversing this trend, the Court in 1995 in United States v. Lopez43 struck down a statute prohibiting possession of a gun at or near a school, rejecting an argument that possession of firearms in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate "a[ny] distinction between what is truly national and what is truly local," would convert Congress' commerce power into "a general police power of the sort retained by the States," and would undermine the "first principle" that the Federal Government is one of enumerated and limited powers.44 Application of the same principle led five years later to the Court's decision in United States v. Morrison45 invalidating a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate "non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the Court concluded. "[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims."46

Notwithstanding these federal inroads into powers otherwise reserved to the States, the Court has held that Congress could not itself undertake to punish a violation of state law; in United States v. Constantine,47 a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional. However, Congress does not contravene reserved state police powers when it levies an occupation tax on all persons engaged in the business of accepting wagers regardless of whether those persons are violating state law, and imposes severe penalties for failure to register and pay the tax.48

41 Perez v. United States, 402 U.S. 146 (1971).

42 Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264 (1981).

43 514 U.S. 549 (1995).

44 United States v. Lopez, 514 U.S. at 552, 567-68 (1995).

45 529 U.S. 598 (2000).

46 529 U.S. at 617.

47 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments and hence to be an unlawful invasion of the powers reserved to the States by the Tenth Amendment. Civil Rights Cases, 109 U.S. 3, 15 (1883). Congress has now accomplished this end under its commerce powers, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964), but it is clear that the rationale of the Civil Rights Cases has been greatly modified if not severely impaired. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (13th Amendment); Griffin v. Breckenridge, 403 U.S. 88 (1971) (13th Amendment); United States v. Guest, 383 U.S. 745 (1966) (14th Amendment).

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