The Commerce Clause as a Source of National Police Power
The Court has several times expressly noted that Congress’ exercise of power under the commerce clause is akin to the police power exercised by the States.853 It should follow, therefore, that Congress may achieve results unrelated to purely commercial aspects of commerce, and this result in fact has often been accomplished. Paralleling and contributing to this movement is the virtual disappearance of the distinction between interstate and intrastate commerce.
Is There an Intrastate Barrier to Congress’ Commerce Power.—Not only has there been legislative advancement and judicial acquiescence in commerce clause jurisprudence, but the melding of the Nation into one economic union has been more than a little responsible for the reach of Congress’ power. The volume of interstate commerce and the range of commonly accepted objects of government regulation have . . . expanded considerably in the last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress’ commerce power.854
Congress’ commerce power has been characterized as having three, or sometimes four, very interrelated principles of decision, some old, some of recent vintage. The Court in 1995 described “three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”9
First, the commerce power attaches to the crossing of state lines, and Congress has validly legislated to protect interstate travelers from harm, to prevent such travelers from being deterred in the exercise of interstate traveling, and to prevent them from being burdened. Many of the 1964 public accommodations law applications have been premised on the point that larger establishments do serve interstate travelers and that even small stores, restaurants, and the like may serve interstate travelers, and, therefore, it is permissible to regulate them to prevent or deter discrimination.855
Second, it may not be persons who cross state lines but some object that will or has crossed state lines, and the regulation of a purely intrastate activity may be premised on the presence of the object. Thus, the public accommodations law reached small establishments that served food and other items that had been purchased from interstate channels.856 Congress has validly penalized convicted felons, who had no other connection to interstate commerce, for possession or receipt of firearms, which had been previously transported in interstate commerce independently of any activity by the two felons.857 This reach is not of newly-minted origin. In United States v. Sullivan,858 the Court sustained a conviction of misbranding, under the Federal Food, Drug and Cosmetic Act. Sullivan, a Columbus, Georgia, druggist had bought a properly labeled 1000–tablet bottle of sulfathiazole from an Atlanta wholesaler. The bottle had been shipped to the Atlanta wholesaler by a Chicago supplier six months earlier. Three months after Sullivan received the bottle, he made two retail sales of 12 tablets each, placing the tablets in boxes not labeled in strict accordance with the law. Upholding the conviction, the Court concluded that there was no question of the constitutional power of Congress under the commerce clause to regulate the branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce.859
853 E.g., Brooks v. United States, 267 U.S. 432, 436–437 (1925); United States v. Darby, 312 U.S. 100, 114 (1941). See Cushman, The National Police Power Under the Commerce Clause, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 62 (1938).
9 United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted). Illustrative of the power to legislate to protect the channels and instrumentalities of interstate commerce is Pierce County v. Guillen, 537 U.S. 129, 147 (2003), in which the Court upheld a prohibition on the use in state or federal court proceedings of highway data required to be collected by states on the basis that “Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering requirement . . . would result in more diligent efforts [by states] to collect the relevant information.”
857 Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212 (1976). However, because such laws reach far into the traditional police powers of the States, the Court insists Congress clearly speak to its intent to cover such local activities. United States v. Bass, 404 U.S. 336 (1971). See also Rewis v. United States, 401 U.S. 808 (1971); United States v. Enmons, 410 U.S. 396 (1973). A similar tenet of construction has appeared in the Court’s recent treatment of federal prosecutions of state officers for official corruption under criminal laws of general applicability. E.g., McCormick v. United States, 500 U.S. 257 (1991); McNally v. United States, 483 U.S. 350 (1987). Congress has overturned the latter case. 102 Stat. 4508, § 7603, 18 U.S.C. § 1346.
858 332 U.S. 689 (1948).
859 332 U.S. at 698–99.
Third, Congress’ power reaches not only transactions or actions that occasion the crossing of state or national boundaries but extends as well to activities that, though local, affect commerce, a combination of the commerce power enhanced by the necessary and proper clause. The seminal case, of course, is Wickard v. Filburn,860 sustaining federal regulation of a crop of wheat grown on a farm and intended solely for home consumption. The premise was that if it were never marketed, it supplied a need otherwise to be satisfied only in the market, and that if prices rose it might be induced onto the market. Even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.861 Coverage under federal labor and wage-and-hour laws after the 1930s showed the reality of this doctrine.862
860 317 U.S. 111 (1942).
In upholding federal regulation of strip mining, the Court demonstrated the breadth of the affects standard. One case dealt with statutory provisions designed to preserve prime farmland. The trial court had determined that the amount of such land disturbed annually amounted to 0.006% of the total prime farmland acreage in the Nation and, thus, that the impact on commerce was infinitesimal or trivial. Disagreeing, the Court said: A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.863 Moreover, [t]he pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce.864 In a companion case, the Court reiterated that [t]he denomination of an activity as a ‘local’ or ‘intrastate’ activity does not resolve the question whether Congress may regulate it under the Commerce Clause. As previously noted, the commerce power ‘extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.’865 Judicial review is narrow. Congress’ determination of an effect must be deferred to if it is rational, and Congress must have acted reasonably in choosing the means.866
Fourth, a still more potent engine of regulation has been the expansion of the class-of-activities standard, which began in the affecting cases. In Perez v. United States,867 the Court sustained the application of a federal loan-sharking law to a local culprit. The Court held that, although individual loan-sharking activities might be intrastate in nature, still it was within Congress’ power to determine that the activity was within a class the activities of which did affect interstate commerce, thus affording Congress the opportunity to regulate the entire class. While the Perez Court and the congressional findings emphasized that loan-sharking was generally part of organized crime operating on a national scale and that loan-sharking was commonly used to finance organized crime’s national operations, subsequent cases do not depend upon a defensible assumption of relatedness in the class.
864 452 U.S. at 324.
866 452 U.S. at 276, 277. The scope of review is restated in Preseault v. ICC, 494 U.S. 1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases, objected that the Court was making it appear that no constitutional limits existed under the commerce clause, whereas in fact it was necessary that a regulated activity must have a substantial effect on interstate commerce, not just some effect. He thought it a close case that the statutory provisions here met those tests. 452 U.S. at 307–313.
867 402 U.S. 146 (1971).
Thus, the Court applied the federal arson statute to the attempted torching of a defendant’s two-unit apartment building. The Court merely pointed to the fact that the rental of real estate unquestionably affects interstate commerce and that the local rental of an apartment unit is merely an element of a much broader commercial market in real estate.868 The apparent test of whether aggregation of local activity can be said to affect commerce was made clear next in an antitrust context.869 Allowing the continuation of an antitrust suit challenging a hospital’s exclusion of a surgeon from practice in the hospital, the Court observed that in order to establish the required jurisdictional nexus with commerce, the appropriate focus is not on the actual effects of the conspiracy but instead is on the possible consequences for the affected market if the conspiracy is successful. The required nexus in this case was sufficient because competitive significance is to be measured by a general evaluation of the impact of the restraint on other participants and potential participants in the market from which the surgeon was being excluded.870
For the first time in almost sixty years,871 the Court invalidated a federal law as exceeding Congress’ authority under the commerce clause.872 The statute was a provision making it a federal offense to possess a firearm within 1,000 feet of a school.873 The Court reviewed the doctrinal development of the commerce clause, especially the effects and aggregation tests, and reaffirmed that it is the Court’s responsibility to decide whether a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged.874 The Court identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.875
868 Russell v. United States, 471 U.S. 858, 862 (1985). In a later case the Court avoided the constitutional issue by holding the statute inapplicable to the arson of an owner-occupied private residence.
869 Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). See also Jones v. United States, 529 U.S. 848 (2000)(an owner-occupied building is not used in interstate commerce within the meaning of the federal arson statute).
870 500 U.S. at 330–32. The decision was 5–to–4, with the dissenters of the view that, although Congress could reach the activity, it had not done so.
871 Carter v. Carter Coal Co., 298 U.S. 238 (1936).
872 United States v. Lopez, 514 U.S. 549 (1995). The Court was divided 5–to– 4, with Chief Justice Rehnquist writing the opinion of the Court, joined by Justices O’Connor, Scalia, Kennedy, and Thomas, with dissents by Justices Stevens, Souter, Breyer, and Ginsburg.
873 18 U.S.C. § 922(q)(1)(A). Congress subsequently amended the section to make the offense jurisdictionally to turn on possession of a firearm that has moved inor that otherwise affects interstate or foreign commerce. Pub. L. 104–208, 110 Stat. 3009–370.
874 514 U.S. at 556–57, 559.
875 514 U.S. at 558–59. For a recent example of regulation of persons or things in interstate commerce, see Reno v. Condon, 528 U.S. 141 (2000) (information about motor vehicles and owners, regulated pursuant to the Driver’s Privacy Protection Act, and sold by states and others, is an article of commerce)
Clearly, said the Court, the criminalized activity did not implicate the first two categories.876 As for the third, the Court found an insufficient connection. First, a wide variety of regulations of intrastate economic activity has been sustained where an activity substantially affects interstate commerce. But the statute being challenged, the Court continued, was a criminal law that had nothing to do with commerce or with any sort of economic enterprise. Therefore, it could not be sustained under precedents upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.877 The provision did not contain a jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.878 The existence of such a section, the Court implied, would have saved the constitutionality of the provision by requiring a showing of some connection to commerce in each particular case. Finally, the Court rejected the arguments of the Government and of the dissent that there existed a sufficient connection between the offense and interstate commerce.879 At base, the Court’s concern was that accepting the attenuated connection arguments presented would result in the evisceration of federalism. Under the theories that the Government presents . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.880
876 514 U.S. at 559.
877 514 U.S. at 559–61.
878 514 U.S. at 561.
879 514 U.S. at 563–68.
880 514 U.S. at 564.
Whether Lopez bespoke a Court determination to police more closely Congress’ exercise of its commerce power, so that it would be a noteworthy case,881 or whether it was rather a warning shot across the bow of Congress, urging more restraint in the exercise of power or more care in the drafting of laws, was not immediately clear. The Court’s decision five years later in United States v. Morrison,882 however, suggests that stricter scrutiny of Congress’s commerce power exercises is the chosen path, at least for legislation that falls outside the area of economic regulation.883 The Court will no longer defer, via rational basis review, to every congressional finding of substantial effects on interstate commerce, but instead will examine the nature of the asserted nexus to commerce, and will also consider whether a holding of constitutionality is consistent with its view of the commerce power as being a limited power that cannot be allowed to displace all exercise of state police powers.
In Morrison the Court applied Lopez principles to invalidate a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,884 the Court explained, and there was allegedly no precedent for upholding commerce-power regulation of intrastate activity that was not economic in nature. The provision, like the invalidated provision of the Gun-Free School Zones Act, contained no jurisdictional element tying the regulated violence to interstate commerce. Unlike the Gun-Free School Zones Act, the VAWA did contain numerous congressional findings about the serious effects of gender-motivated crimes,885 but the Court rejected reliance on these findings. The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.... [The issue of constitutionality] is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.886 The problem with the VAWA findings was that they relied heavily on the reasoning rejected in Lopez – the but-for causal chain from the initial occurrence of crime . . . to every attenuated effect upon interstate commerce. As the Court had explained in Lopez, acceptance of this reasoning would eliminate the distinction between what is truly national and what is truly local, and would allow Congress to regulate virtually any activity, and basically any crime.887 Accordingly, the Court reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. Resurrecting the dual federalism dichotomy, the Court could find 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.888
881 Not every epochal case has come in epochal trappings. 514 U.S. at 615 (Justice Souter dissenting) (wondering whether the case is only a misapplication of established standards or is a veering in a new direction).
882 529 U.S. 598 (2000). Once again, the Justices were split 5–4, with Chief Justice Rehnquist’s opinion of the Court being joined by Justices O’Connor, Scalia, Kennedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissenting.
883 For an expansive interpretation in the area of economic regulation, decided during the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995). Lopez did not purport to announce a new rule governing Congress Commerce Clause power over concededly economic activity. Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003).
884 529 U.S. at 613.
885 Dissenting Justice Souter pointed to a mountain of data assembled by Congress to show the effects of domestic violence on interstate commerce. 529 U.S. at 628-30. The Court has evidenced a similar willingness to look behind congressional findings purporting to justify exercise of enforcement power under section 5 of the Fourteenth Amendment. See discussion under enforcement, infra. In Morrison itself, the Court determined that congressional findings were insufficient to justify the VAWA as an exercise of Fourteenth Amendment power. 529 U.S. at 619-20.
886 529 U.S. at 614.
887 529 U.S. at 615">529 U.S. 848 (2000), interpreted the federal arson statute as inapplicable to the arson of a private, owner-occupied residence. Were the statute interpreted to apply to such residences, the Court noted, hardly a building in the land would fall outside [its] domain, and the statute’s validity under Lopez would be squarely raised. 529 U.S. at 857.
888 529 U.S. at 618.
Civil Rights.—It had been generally established some time ago that Congress had power under the commerce clause to prohibit racial discrimination in the use of the channels of commerce.889 The power under the clause to forbid discrimination within the States was firmly and unanimously sustained by the Court when Congress in 1964 enacted a comprehensive measure outlawing discrimination because of race or color in access to public accommodations with a requisite connection to interstate commerce.890 Hotels and motels were declared covered, that is, declared to affect commerce, if they provided lodging to transient guests; restaurants, cafeterias, and the like, were covered only if they served or offered to serve interstate travelers or if a substantial portion of the food which they served had moved in commerce.891 The Court sustained the Act as applied to a downtown Atlanta motel which did serve interstate travelers,892 to an out-ofthe-way restaurant in Birmingham that catered to a local clientele but which had spent 46 percent of its previous year’s out-go on meat from a local supplier who had procured it from out-of-state,893 and to a rurally-located amusement area operating a snack bar and other facilities, which advertised in a manner likely to attract an interstate clientele and that served food a substantial portion of which came from outside the State.894
Yet, the ultimate impact of these cases on Congress’ power over commerce may be limited. In Gonzales v. Raich,10 the Court reaffirmed an expansive application of Wickard v. Filburn, and signaled that its jurisprudence is unlikely to threaten the enforcement of broad regulatory schemes based on the Commerce Clause. In Raich, the Court considered whether the cultivation, distribution, or possession of marijuana for personal medical purposes pursuant to the California Compassionate Use Act of 1996 could be prosecuted under the federal Controlled Substances Act (CSA).11 The respondents argued that this class of activities should be considered as separate and distinct from the drug-trafficking that was the focus of the CSA, and that regulation of this limited non-commercial use of marijuana should be evaluated separately.
In Raich, the Court declined the invitation to apply Lopez and Morrison to select applications of a statute, holding that the Court would defer to Congress if there was a rational basis to believe that regulation of home-consumed marijuana would affect the market for marijuana generally. The Court found that there was a rational basis to believe that diversion of medicinal marijuana into the illegal market would depress the price on the latter market.12 The Court also had little trouble finding that, even in application to medicinal marijuana, the CSA was an economic regulation. Noting that the definition of “economics” includes “the production, distribution, and consumption of commodities,”13 the Court found that prohibiting the intrastate possession or manufacture of an article of commerce is a rational and commonly used means of regulating commerce in that product.
The Court’s decision also contained an intertwined but potentially separate argument that Congress had ample author ity under the Necessary and Proper Clause to regulate the intrastate manufacture and possession of controlled substances, because failure to regulate these activities would undercut the ability of the government to enforce the CSA generally.14 The Court quoted language from Lopez that appears to authorize the regulation of such activities on the basis that they are an essential part of a regulatory scheme.15 Justice Scalia, in concurrence, suggested that this latter category of activities could be regulated under the Necessary and Proper Clause regardless of whether the activity in question was economic or whether it substantially affected interstate commerce.16
890 Civil Rights Act of 1964, Title II, 78 Stat. 241, 243, 42 U.S.C. § 2000a et seq.
891 42 U.S.C. § 2000a (b).
892 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
893 Katzenbach v. McClung, 379 U.S. 294 (1964).
894 Daniel v. Paul, 395 U.S. 298 (1969).
10 545 U.S. 1 (2005).
11 84 Stat. 1242, 21 U.S.C. §§ 801 et seq.
12 545 U.S. at 19.
13 545 U.S. at 25, quoting Webster’s Third New International Dictionary 720 (1966).
14 545 U.S. at 18, 22.
15 545 U.S. at 23-25.
16 545 U.S. at 34-35 (Scalia, J., concurring).
Writing for the Court in Heart of Atlanta Motel and McClung, Justice Clark denied that Congress was disabled from regulating the operations of motels or restaurants because those operations may be, or may appear to be, local in character. [T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.895
But, it was objected, Congress is regulating on the basis of moral judgments and not to facilitate commercial intercourse. That Congress [may legislate] . . . against moral wrongs . . . rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.896 The evidence did, in fact, noted the Justice, support Congress’ conclusion that racial discrimination impeded interstate travel by more than 20 million black citizens, which was an impairment Congress could legislate to remove.897
The commerce clause basis for civil rights legislation in respect to private discrimination was important because of the understanding that Congress’ power to act under the Fourteenth and Fifteenth Amendments was limited to official discrimination.898 The Court’s subsequent determination that Congress is not necessarily so limited in its power reduces greatly the importance of the commerce clause in this area.899
Criminal Law.—Federal criminal jurisdiction based on the commerce power, and frequently combined with the postal power, has historically been an auxiliary criminal jurisdiction. That is, Congress has made federal crimes of acts that constitute state crimes on the basis of some contact, however tangential, with a matter subject to congressional regulation even though the federal interest in the acts may be minimal.900 Examples of this type of federal criminal statute abound, including the Mann Act designed to outlaw interstate white slavery,901 the Dyer Act punishing interstate transportation of stolen automobiles,902 and the Lindbergh Law punishing interstate transportation of kidnapped persons.903 But, just as in other areas, Congress has passed beyond a proscription of the use of interstate facilities in the commission of a crime, it has in the criminal law area expanded the scope of its jurisdiction. Typical of this expansion is a statute making it a federal offense to in any way or degree obstruct . . . delay . . . or affect . . . commerce . . . by robbery or extortion ....904 With the expansion of the scope of the reach of commerce the statute potentially could reach crimes involving practically all business concerns, although it appears to be used principally against organized crime.
To date, the most far-reaching measure to be sustained by the Court has been the loan-sharking prohibition of the Consumer Credit Protection Act.905 The title affirmatively finds that extortionate credit transactions affect interstate commerce because loan sharks are in a class largely controlled by organized crime with a substantially adverse effect on interstate commerce. Upholding the statute, the Court found that though individual loan-sharking activities may be intrastate in nature, still it is within Congress’ power to determine that it was within a class the activities of which did affect interstate commerce, thus affording Congress power to regulate the entire class.906
899 The open housing provision of the 1968 Civil Rights Act, Title VIII, 82 Stat. 73, 81, 42 U.S.C. § 3601, was based on the commerce clause, but in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court held that antidiscrimination-in-housing legislation could be based on the Thirteenth Amendment and made operative against private parties. Similarly, the Court has concluded that although § 1 of the Fourteenth Amendment is judicially enforceable only against state action, Congress is not so limited under its enforcement authorization of § 5. United States v. Guest, 383 U.S. 745, 761, 774 (1966) (concurring opinions); Griffin v. Breckenridge, 403 U.S. 88 (1971).
901 18 U.S.C. § 2421.
902 18 U.S.C. § 2312.
903 18 U.S.C. § 1201.
904 18 U.S.C. § 1951. And see, 18 U.S.C. § 1952.
905 Title II, 82 Stat. 159 (1968), 18 U.S.C. § 891 et seq.