A Crash Course in the Interstate Commerce Clause (Updated)

(Updated)

As I asserted earlier, the Interstate Commerce Clause basically means Congress can do whatever it wants to do. Here's a summary, culled from Constitutional Law by Stone, Seidman, Sunstein and Tushnet (4th ed.) of what, according to the Supreme Court, counts as "commerce ... among the several states."

Gibbons v. Ogden (1824) - A man wants to operate a ferryboat between New York and New Jersey, in violation of a New York statute limiting ferryboat operation to two certain people. This is interstate commerce.

U.S. v. E. C. Knight Co. (1895) - One sugar manufacturer acquired four other manufacturers, and the U.S. sued for antitrust violations. This is not interstate commerce.

Champion v. Ames (1903) - Congress criminalizes the interstate transportation of foreign lottery tickets. This is interstate commerce.

Swift & Co. v. U.S. (1905) - Congress regulates meat dealers, even those who buy and sell locally. This is interstate commerce.

Southern Ry. v. United States (1911) - Congress regulates railway cars with defective couplers, even if the railway cars operate only within one state. This is interstate commerce.

Houston, East & West Ry. v. U.S. (1914) - A federal commission regulated prices charged by a railway running between Texas and Louisiana. This is interstate commerce.

Hammer v. Dagenhart (1918) - The Child Labor Act forbids the sale in interstate commerce of goods produced in factories that employ kids under 14, or kids between 14 and 16 for more than eight hours per day. The factory employment is interstate commerce (5-4 split).

Stafford v. Wallace (1922) - Congress passes law controlling operation of cattleyards, where cows will eventually be sold across state lines. This is interstate commerce.

Coronado Coal Co. v. United Mine Workers (1925) - U.S. sues mine operators for antitrust violations. Operating a mine is interstate commerce.

Ry. Retirement Bd. v. Alton Ry. Co. (1935) - Congress tries to establish compulsory retirement and pension plans for railroad workers. Railroad safety may be interstate commerce, but retirement and pension are not (5-4 split).

A.L.A. Schechter Poultry Corp. v. U.S. (1935) - Virtually all poultry sold in New York came from other states. President Roosevelt approves a Live Poultry Code establishing forty-hour week, imposing minimum wage, forbidding child labor and allowing collective bargaining. This is not interstate commerce.

Carter v. Carter Coal Co. (1936) - Congress regulates collective bargaining issues in the coal industry. This is not interstate commerce.

U.S. v. Darby (1941) - Under the Fair Labor Standards Act, Congress seeks to prevent the sale in interstate commerce of manufactured goods produced by employers who don't comply with minimum wage laws. This is interstate commerce.

Wickard v. Filburn (1942) - The Agricultural Adjustment Act sets a quota on wheat production. Filburn grows wheat both to sell across state lines and to feed his cattle. Filburn argues that the wheat which doesn't cross state lines is beyond the reach of Congress, so it doesn't violate the quota. The wheat he feeds his cows is interstate commerce.

Heart of Atlanta Motel v. U.S. (1964) - The Civil Rights Act prohibits public accommodations (e.g. hotels and restaurants) from discrimination on the grounds of race. The motel is engaged in interstate commerce.

Katzenbach v. McClung (1964) - A companion case to Heart of Atlanta, where a restaurant owner who discriminated against blacks challenged the statute. Operating a restaurant near a highway is interstate commerce.

Maryland v. Wirtz (1968) - Congress amended the Fair Labor Standards Act and dropped the "in interstate commerce" part. This is still interstate commerce.

Perez v. U.S. (1971) - Congress passes a law against purely local loan sharking. This is interstate commerce. The court said that although the Defendant here was purely local, loan sharking in general can be interstate, and Defendant is part of the class defined as "loan sharks."

U.S. v. Bass (1971) - Congress tries to make it illegal for felons to receive or possess a firearm that has been transported in interstate commerce. The Court doesn't say this isn't interstate commerce, but does strike down the statute as being too vague.

Garcia v. San Antonio Metro Transit Auth. (1985) - Congress passes minimum wage and maximum hour limits for employees of state and local employees. This is interstate commerce.

U.S. v. Lopez (1995) - Congress passes the Gun-Free School Zones Act, making it a crime to possess a gun in a school zone. This is not interstate commerce.

U.S. v. Morrison (2000) - The Violence Against Women Act provides a civil remedy for victims of crime motivated by gender. Defendant raped a girl on a college campus. This was not interstate commerce.

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Incidentally, Professor Cross argued in 1999, and I tend to agree, that "federalism will be selectively invoked by courts only when ideologically convenient, so that it has no authentic restraining power of its own." 74 N.Y.U.L.Rev. 1304. I think this principle is well-illustrated in Scalia's vote in Raich. Scalia is sometimes a champion of state power, but not always, it would seem.

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Supernatural Rabbit Scribe stated his concern about Wickard v. Filburn. I remember in law school being absolutely stunned and dismayed by that decision. If the guy plants wheat on his own property, grows it, harvests it, then gives it to his cows which are also on his property, I could think of no way to justify calling that interstate commerce.

I've since modified my view. Although Filburn wasn't selling his extra wheat, he also wasn't buying anyone else's wheat. His activities, while local, were sufficient to substantially affect interstate commerce, and much more so if other purely local farmers got the same idea. There is simply no question that local production and consumption decreases inter-state shipment and sales of goods, because demand drops.

That's not to say the Congressional scheme was a good idea - on the contrary, imposing quotas on goods is a terrible idea in so many ways. But note carefully that my disappointment with Congress would not, under any circumstances, mean I would have supported the Court if the Court had said, "you know, Congress made a really bad judgment call. We should be more free-market oriented." The issue, again, is not what Congress should do, but what they can do, and I don't want the Court engaging in social or economic engineering even when I disapprove of Congress' actions.