Article I of the US Constitution created the Congress and defined its powers. In Article 1, Section 8 there is a list of powers that are granted to Congress, and areas of law in which the Congress may pass statutes. This list of powers is referred to as the enumerated powers.
What has come to be known as the Commerce Clause is found in Article I, Section 8, Clause 3 and states the United States Congress shall have power :
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
Since the Constitution was ratified in 1789, the Commerce Clause has become the central element of the Constitution in determining the reach of federal power. It has gone through three periods of Supreme Court understanding. While the Supreme Court is the ultimate arbiter of the meaning of the Constitution, the understanding of the Commerce Clause as an enumerated power held by the President and the Congress also have a great impact upon the actions they take.
Sometimes elections are about what the government should do or not do from a policy standpoint, sometimes they are also about what the government can and cannot do from a legal standpoint. The election of 2010 has developed many themes, but in essence it comes down to how the elected branches of government interpret their authority under the Commerce Clause.
The First Commerce Clause Period
One of the principle reasons for the failure of the Articles of Confederation was that the central government had virtually no authority to regulate what states did at their borders. States enacted taxes, tariffs, tolls and more that made it very difficult for residents of one state to do business with residents of another. Granting power to see to it that business could be freely done between states was a major goal in 1787. The Commerce Clause is in the Constitution for that reason.
In 1804, the state of New York had granted an exclusive license to Aaron Ogden for the operation of steam boats within it waters, including going from New York to New Jersey. Thomas Gibbons had been given a license by the US Congress to operate in the same waters. Ogden sued Gibbons in a New York court, and the court ordered Gibbons to cease operations.
This kind of restriction on “commerce” between the states was just the kind of thing the Commerce Clause was designed to do away with. Gibbons appealed to the Supreme Court. Chief Justice John Marshall, in Gibbons v. Ogden , declared the New York license grant unconstitutionally imposed a burden on business activity with New Jersey.
Constitutional law develops in fits and starts, but largely for 148 years, the Supreme Court looked at the commerce clause as giving Congress the power to regulate activity that in some fashion crossed state borders, and such regulation could not be interfered with by the States. However, the general understanding was that congressional power did not reach activity that took place entirely within a single state.
The Second Commerce Clause Period, The New Deal
The Great Depression was a huge national crisis. A good deal of the blame was placed upon the Federal Government and resulted in the election of Franklin Roosevelt along with Democrat majorities in Congress. President Roosevelt and the Congress took a very expansive view of the Commerce Clause. Much more expansive than the sitting Supreme Court.
As the New Deal got under way, the Congress passed much legislation regulating banks and the economy. As those laws found their way to the Supreme Court, the Court found many of these laws to go beyond the traditional authority granted by the Commerce Clause, and found them unconstitutional.
The Court however was faced with popular legislation passed and a President determined to figure out a way to have his will. The Court began in 1937 to ratify greater government involvement in the economy both at the state and federal level, but really extended the reach of the Commerce Clause in 1942.
Wickard v. Filburn and the Butterfly Effect
Roscoe Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under federal government production quota for wheat. Filburn harvested more wheat than his allotment. Filburn wanted the wheat for use on his farm, including feed for livestock. Filburn was penalized $117.11. He argued that the excess wheat was unrelated to commerce since he grew it for his own use, was never on the market or in any way crossed state lines, and so his wheat was beyond the power of Congress to regulate.
In Wickard v. Filburn , the US Secretary of Agriculture was taken to the Supreme Court. The Court found that Mr. Filburn’s wheat, simply by his growing it and never sending it anywhere, had an effect on interstate commerce. If he grew it and didn’t buy it from someone else, then he didn’t do business with that unknown someone else. Sort of like the “butterfly effect” when the wings of a butterfly flapping in the Amazon sends air ripples that cause a tornado in Nebraska. After Wickard v. Filburn, it appeared that the federal government’s power under the Commerce Clause was virtually unlimited.
Renewed Limitations on Federal Power Under the Commerce Clause
Until 1995, there would not be another Congressional action held by the Supreme Court to exceed the powers granted by the Commerce Clause. In 1995, the Court found Congress finally had gone too far in attempting to prosecute 12th grade student Alfonso Lopez for bringing a handgun and five bullets to school in Texas. Lopez’ federal prosecution was under a law that had no bearing on interstate commerce, and was unconstitutional.
A 5-4 decision in United States v. Lopez set the stage for a series of decisions that began to limit Congressional authority under the Commerce Clause for the first time in over 50 years. These decisions will have great impact on the outcome of court battles over the Obama Health Care Reform Act.
The Commerce Clause and the 2010 Elections
In 2010, the extent and reach of the federal government into people’s lives is at issue. The views of members of and candidates for Congress and how far they believe the clause can reach is fundamental to the essence of the United States. As the New Deal Court demonstrated, while the Supreme Court interprets the law, members of the Court read election returns as well.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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