What is the Commerce Clause?
What is the Commerce Clause and Why is it Important?
by Gary Marbut
During colonial times in America, there was a problem with commerce that crossed lines between colonies. More specifically, some colonies would practice predatory taxation upon goods passing through enroute from colony A to colony B. For example, suppose the Carolinas were shipping tobacco to market in New York. Suppose that enroute Virginia placed such a heavy tax on the goods passing through that they would not be marketable, pricewise, upon reaching New York markets.
This was an issue that the Continental Congress and the framers of the U.S. Constitution felt Congress must have the power to address. Therefore, the original Constitution contained the provision at Article II, Section 8:
“The Congress shall have power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”
Congress’s power to “regulate commerce … among the states” is now often referred to as done under the “interstate commerce clause” or just the “commerce clause.”
Commerce clause power was not much used by Congress until the New Deal and the administration of President Franklin D. Roosevelt (FDR). During that administration, Roosevelt attempted to assert a lot of federal power that had not been previously asserted by the federal government. However, a number of such laws pressed through Congress were found by the U.S. Supreme Court to lack constitutional authority. For many of these pet endeavors, FDR claimed commerce clause authority.
Upon being rebuffed by the Supreme Court, Roosevelt threatened to expand the number of justices on the Court in order to be able to pack the Court with sympathizers and thereby gain court approval of his threatened New Deal programs. That created something of a standoff between Roosevelt and the Supreme Court.
It was into this politically-charged situation that the legal case of Wickard v. Filburn came to the Supreme Court. Because of the real threat of Court-packing by Roosevelt, the Supreme Court blinked on Wickard.
Wickard was a wheat farmer in Illinois and Filburn was the Secretary of Agriculture. In order to maintain wheat prices, Congress had instituted price supports for Wheat markets, along with quotas for growing wheat. Wickard was not only growing wheat for market, but he also grew an extra acre of wheat to harvest to give to his wife to grind into flour to make bread for the Wickard family. The Department of Agriculture, tasked to enforce the wheat quotas, asserted that the acre of wheat Wickard grew for his family was a violation of the quotas.
Wickard sued. The Department of Agriculture claimed that Congress had commerce clause authority under the Constitution to prohibit Wickard’s practice of growing wheat for his family. Even though it was admitted that the wheat Wickard grew for his family never left the farm, the Department of Agriculture claimed that this practice affected interstate commerce. If Wickard had not given this wheat to his wife, the government argued, it might have traveled across a state line and could have affected interstate commerce. Further, the government argued, if Wickard had not given farm-grown wheat to his wife to feed the family, his wife would have bought bread at the store – bread that might have crossed a state line and might have affected interstate commerce.
Thus, the government argued, Congress had sufficient constitutional authority under the commerce clause to impose the wheat quotas on Wickard and prohibit him from growing extra wheat to feed his family.
When presented with this argument and the Roosevelt threat to expand and pack the Supreme Court, the Court upheld the government’s arguments in Wickard, thereby dramatically expanding the power of Congress to “regulate commerce … among the states.”
Since the New Deal, a large proportion of laws enacted by Congress are theoretically founded on commerce clause power.
Fast forward to current times. California passed a law in 1996 allowing the cultivation, distribution and consumption of marijuana for medicinal purposes. Notwithstanding this state law, the federal Drug Enforcement Administration continued a practice of raiding medical marijuana clinics in California, and charging those involved criminally with possession and distribution of “dangerous drugs,” a violation of federal law. It was assumed that this power was available to Congress under the commerce clause
In 2005, a legal case about this, Gonzales v. Raich, reached the U.S. Supreme Court, which upheld the power of Congress to enforce federal anti-marijuana laws despite state law approval of medical marijuana. The Court held that medical marijuana grown and consumed in California was indistinguishable from marijuana transported across the state line, and therefore affected interstate commerce, even in the absence of any legal market in marijuana.
Some legal scholars say that under this wide-open interpretation of commerce clause authority, there is absolutely nothing that Congress cannot regulate as affecting interstate commerce. The air you breathe, for example, was once in another state. The pencil you write with, even if made from wood and graphite from your state, was made possible by loggers who cut the trees for the pencil, and who had coffee for breakfast that was transported across a state line (See U.S. v. Stewart, Judge Kozinski’s first opinion).
The Firearms Freedom Act (FFA) is a direct challenge to federal commerce clause authority because it declares that any firearms made and retained in a state are not subject to federal commerce clause authority. Further, firearms made under the authority of the FFA must be stamped “Made in [state name]“, making them distinguishable from other firearms, unlike the indistinguishable medical marijuana in Raich.
Proponents for the FFA say that it is about states’ rights. Firearms are the object, but states’ rights are the subject. They also argue that the commerce clause was amended, by the Tenth Amendment, and that the Tenth Amendment, being the most recent expression of the enacting authority, must prevail over an unlimited interpretation of commerce clause authority to regulate firearms made and retained in a state.
If FFA proponents’ view prevails, it may affect a great deal of congressional authority other than for firearms.
The renewed debate over states rights and the pending litigation over the FFA have set the stage for a general re-examination of the scope of federal commerce clause authority. And while it is still unclear exactly where this re-examination will end up, the eventual outcome could drastically change application of federal authority in effect since the New Deal.
End
For further reference see:
Wikipedia – Commerce Clause
http://en.wikipedia.org/wiki/Commerce_Clause
Wikipedia – Wickard v. Filburn
http://en.wikipedia.org/wiki/Wickard_v._Filburn
Wikipedia – U.S. v. Lopez
http://en.wikipedia.org/wiki/Us_v._lopez
Wikipedia – U.S. v. Stewart
http://en.wikipedia.org/wiki/United_States_v._Stewart_(2003)
Wikipedia – Gonzales v. Raich
http://en.wikipedia.org/wiki/Gonzales_v._Raich
Wikipedia – Dormant Commerce Clause
http://en.wikipedia.org/wiki/Dormant_Commerce_Clause
Professor Rob Natelson
Tempering the Commerce Power, 68 Mont. L. Rev. 95 (2007).
http://www.umt.edu/law/faculty/natelson/articles/Tempering%20the%20Commerce%20Power.pdf
The Legal Meaning of “Commerce” In the Commerce Clause, 80 St. John’s L. Rev. 789 (2006).
http://www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf
Judge Alex Kozinski’s first (before remand by USSC) Ninth Circuit
opinion in US v. Stewart
Nex ut Tyrannus!
The hogs are hungry.
Effect Operation Consequence. Start with the CZARS!
Turn them into pig poop!
Commerce clause is part of Article I, not Article II.
Thanks for the excellent work. I’ve linked back to your site
Yes, this is a very good description of the commerce clause, however there are a couple other factual errors. Wickard was the US Secretary of Agriculture, and Roscoe Filburn was a wheat farmer in Ohio (not Illinois).
In constitutional law, there is also a concept called the dormant commerce clause. This is not written into the constitution, but is implied. The dormant commerce clause is the authority of Congress to prevent protectionism between the states. It could come into play in this lawsuit because if this case succeeds and allows states to engage in intrastate commerce that is exempt from Congressional regulations, it could be seen as encouraging states to pass protectionist laws that discourage local industries from participating in interstate commerce.
If everyone decide they didn’t want to buy corn anymore, substantially effecting commerce, do the feds have authority and/or duty to make everyone buy a certain amount of corn?
If everyone decided they did not want to buy meat anymore but instead decided that they would only eat vegitibles, substantially effecting commerce, do the feds have authority and/or duty to mandate that everyone buy some portion of meat?
If one person made it fasionable to wear boots only as footwear, and everyone only wanted boots and only bought boots, substantially effecting commerce, do the feds have the authority and/or duty to mandate that everyone buy shoes too?
If I were to live in Arizona and grew Cactus as a source of food, do the feds have the authority and duty to make the people of other states eat my Cactus? Because “IF” everyone in Arizona decided that they were going to produce Cactus for the market then it would substantially effect commerce if the feds did not mandate that the “people at large” of other states eat my Cactus.
Does the feds have the authority and/or duty to make everyone stop breathing air for oxygen, and instead buy oxygen in tanks and breath that, because if everyone continues to breath air for oxygen then that has a substantial effect on commerce because everyone would be stealing from the oxygen supply businesses; especially if the oxygen supply business became popular because of all the money that could be made off the people because oxygen is in demand to keep people alive and so the feds would have a duty to mandate that everyone must buy oxygen and breath from the tank, right?
When someone who sells goods, finds the demand for his type of goods is decreasing or is totally gone, he cannot force others to demand his goods, to keep him in business; he must find something else where there is already a demand, and produce it. If he choses he can find some other line of work to make his way in life but cannot mandate for others to create a demand for his goods or create a need for his services. He must find his way and if he cannot then he must beg for food or perish.
The commerce clause was created to make regular, not restrictive the flow of commerce; to assist the flow not the shutting off of commerce; to allow the freedom of not the restriction of commerce; to allow commerce not to deny it the transaction. To make regular, let flow, allow the freedom of commerce so the transaction could be completed with no restriction of no shutting off of or denial of such transaction; and after the transaction was complete, the feds had no more authority or duty to have a hand in any way whatsoever connected to the goods after the transaction is complete. Where there is no further transaction interstate with the item, that is where the fed’s jurisdiction ends.
The Court held that medical marijuana grown and consumed in California was indistinguishable from marijuana transported across the state line, and therefore affected interstate commerce, even in the absence of any legal market in marijuana.
This same argument could be said this way:
Medical marijuana grown and consumed in California is indistinguishable from marijuana transported across the state line, and therefore does not affect interstate commerce, even in the absence of any legal market in marijuana, unless the prosecutor can prove that it did cross the state line; the Feds having the burden of proof.
The commerce clause refers to commerce between the several states, not commerce between citizens of the several states. The Federalist Papers say this means how states tax each other as goods flow from one to the other. This clause is operative on state governments not on individuals. Otherwise it would say commerce between the citizens of the several states. Right? That’s what the Federalist Papers say. The current application of the commerce clause by the courts is an invention to give the feds more power than the constitution allows.
@James W.
Hi James! You reached a very insightful conclusion.
Wheat farmer Filburn would have saved himself and ultimately all of us this “affecting interstate commerce” trouble if in the beginning he had just not entangled himself in Roosevelt’s federal price supports program. Whenever anyone enters into a contract with the government, it is always one-sided in the government’s favor and derogatory to one’s Liberties.
Gary,
You’re not being factual(lying) about your representation of Wickard v Filburn.
You state:
“but he also grew an extra acre of wheat to harvest to give to his wife to grind into flour…”
This is not correct. The real fact of the case is:
“Filburn harvested nearly 12 acres of wheat above his allotment.”
Source: http://www.oyez.org/cases/1940-1949/1942/1942_59