CONSTITUTION
ARTICLE I. SECTION 8.
Clause 3: To regulate commerce with foreign nations, and among the several
states, and with the Indian tribes;
…
Clause 18: To make all laws which shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by this
Constitution in the government of the United States, or in any department or
officer thereof.
McCulloch v. Maryland, 17 U.S. 316 (1819)
FACTS: The state of Maryland had attempted to impede operation of a branch of the Second
Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland.
Though the law, by its language, was generally applicable to all banks not chartered in
Maryland, the Second Bank of the United States was the only out-of-state bank then
existing in Maryland, and the law was recognized in the court's opinion as having
specifically targeted the U.S. Bank.
HELD: The Court determined that Congress did have the power to create the Bank. Chief
Justice Marshall supported this conclusion with four main arguments.
First, historical practice established Congress' power to create the Bank. Marshall invoked
the first Bank of the United States history as authority for the constitutionality of the
second bank. The first Congress enacted the bank after great debate and that it was
approved by an executive "with as much preserving talent as any measure has ever
experienced, and being supported by arguments which convinced minds as pure and as
intelligent as this country can boast."
Second, Chief Justice Marshall refuted the argument that states retain ultimate
sovereignty because they ratified the constitution. "The powers of the general
government, it has been said, are delegated by the states, who alone are truly sovereign;
and must be exercised in subordination to the states, who alone possess supreme
dominion." Marshall contended that it was the people who ratified the Constitution and
thus the people are sovereign, not the states.
Third, Marshall addressed the scope of congressional powers under Article I. The Court
broadly described Congress' authority before addressing the necessary and proper clause.
Marshall admitted that the Constitution does not enumerate a power to create a central
Bank but said that this is not dispositive as to Congress's power to establish such an
institution. Chief Justice Marshall wrote, "In considering this question, then, we must
never forget, that it is a constitution we are expounding.”
Fourth, Marshall supported the Court's opinion textually by invoking the Necessary and
Proper Clause, which permits Congress to seek an objective that is within its enumerated
powers so long as it is rationally related to the objective and not forbidden by the
Constitution. In liberally interpreting the Necessary and Proper clause, the Court
rejected Maryland's narrow interpretation of the clause, which purported that the word
"necessary" in the Necessary and Proper Clause meant that Congress could only pass those
laws which were absolutely essential in the execution of its enumerated powers. The Court
rejected this argument, on the grounds that many of the enumerated powers of Congress
under the Constitution would be useless if only those laws deemed essential to a power's
execution could be passed. Marshall also noted that the Necessary and Proper Clause is
listed within the powers of Congress, not the limitations. The Court held that for these
reasons, the word "necessary" in the Necessary and Proper Clause does not refer to the only
way of doing something, but rather applies to various procedures for implementing all
constitutionally established powers. "Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the letter and spirit of the constitution, are
constitutional."
GIBBONS v. OGDEN, 22 U.S. 1
(1824)
FACTS:
[New York granted Robert R. Livingston and Robert
Fulton the exclusive right of steamboat navigation
on New York state waters. Livingston assigned to
Ogden the right to navigate the waters between
New York City and certain ports in New Jersey.
Ogden (P) brought this lawsuit seeking an
injunction to restrain Gibbons (D) from operating
steam ships on New York waters in violation of his
exclusive privilege. Ogden was granted the
injunction and Gibbons appealed, asserting that his
steamships were licensed under the Act of Congress
entitled “An act for enrolling and licensing ships and
vessels to be employed in the coasting trade and
fisheries, and for regulating the same.” Gibbons
asserted that the Act of Congress superseded the
exclusive privilege granted by the state of New
York.]
HELD: "Commerce, undoubtedly, is traffic, but it is
something more: it is intercourse. It describes the
commercial intercourse between nations, and parts
of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse."
The commerce power "is the power to
regulate; that is, to prescribe the rule by which
commerce is to be governed. This power, like all
others vested in Congress, is complete in itself, may
be exercised to its utmost extent, and acknowledges
no limitations, other than are prescribed in the
constitution."
The Gibbons Court, however, acknowledged that
limitations on the commerce power are inherent in
the very language of the Commerce Clause: "It is not
intended to say that these words comprehend that
commerce, which is completely internal, which is
carried on between man and man in a State, or
between different parts of the same State, and
which does not extend to or affect other States. Such
a power would be inconvenient, and is certainly
unnecessary.
"Comprehensive as the word 'among' is, it
may very properly be restricted to that commerce
which concerns more States than one. . . . The
enumeration presupposes something not
enumerated; and that something, if we regard the
language or the subject of the sentence, must be the
exclusively internal commerce of a State."
WICKARD v. FILBURN, 317 U.S. 111 FACTS:
[The Agriculture Adjustment Act of 1938 (AAA) set
(1942).
quotas on the amount of wheat put into interstate
commerce and established penalties for
overproduction. The goal of the Act was to stabilize
the market price of wheat by preventing shortages
or surpluses. Filburn (P) sold part of his wheat crop
and used the rest for his own consumption. The
amount of wheat Filburn produced for his own
consumption combined with the amount he sold
exceeded the amount he was permitted to produce.
Secretary of Agriculture Wickard (D) assessed a
penalty against him. Filburn refused to pay,
contending that the Act sought to limit local
commercial activity and therefore was
unconstitutional because it exceeded the scope of
Congress’s power under the Commerce Clause.]
HELD: "[E]ven if appellee's activity be local and though it
may not be regarded as commerce, it may still, whatever its
nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce, and this
irrespective of whether such effect is what might at some
earlier time have been defined as 'direct' or 'indirect.'"
The Wickard Court emphasized that although
Filburn's own contribution to the demand for wheat may
have been trivial by itself, that was not "enough to remove
him from the scope of federal regulation where, as here, his
contribution, taken together with that of many others
similarly situated, is far from trivial."
“'The commerce power is not confined in its exercise to the
regulation of commerce among the states. It 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. ... The power of Congress
over interstate commerce is plenary and complete in itself,
may be exercised to its utmost extent, and acknowledges no
limitations other than are prescribed in the Constitution . ...
It follows that no form of state activity can constitutionally
thwart the regulatory power granted by the commerce clause
to Congress. Hence the reach of that power extends to those
intrastate activities which in a substantial way interfere with
or obstruct the exercise of the granted power.'”
UNITED STATES v. LOPEZ, 514
U.S. 549 (1995).
FACTS: Alfonso Lopez, Jr. was a 12th grade student
at Edison High School in San Antonio, Texas. On
March 10, 1992 he carried a concealed .38 caliber
revolver, along with five cartridges, into the school.
The gun was not loaded; Lopez claimed that he was
to deliver the weapon to another person for $40.
School authorities confronted him -- the school had
received anonymous tips that Lopez was carrying
the weapon – and he admitted to having the
weapon. The next day, the United States charged
him with violation of the federal Gun-Free School
Zones Act of 1990 (the "Act"), 18 U.S.C. § 922(q).
Lopez moved to dismiss the indictment on the
ground that §922(q) of the Act was
"unconstitutional as it is beyond the power of
Congress to legislate control over our public
schools." The trial court denied the motion, ruling
that §922(q) was "a constitutional exercise of
Congress’ well defined power to regulate activities
in and affecting commerce, and the 'business' of
elementary, middle and high schools... affects
interstate commerce."
HELD:
The Act exceeds Congress' Commerce Clause
authority.
First, although this Court has upheld a wide variety
of congressional Acts regulating intrastate
economic activity that substantially affected
interstate commerce, the possession of a gun in a
local school zone is in no sense an economic activity
that might, through repetition elsewhere, have such
a substantial effect on interstate commerce. Section
922(q) is a criminal statute that by its terms has
nothing to do with "commerce" or any sort of
economic enterprise, however broadly those terms
are defined. Nor is it an essential part of a larger
regulation of economic activity, in which the
regulatory scheme could be undercut unless the
intrastate activity were regulated. It cannot,
therefore, be sustained under the Court's cases
upholding regulations of activities that arise out of
or are connected with a commercial transaction,
which viewed in the aggregate, substantially affects
interstate commerce.
Second, § 922(q) contains no jurisdictional element
which would ensure, through case-by-case inquiry,
that the firearms possession in question has the
requisite nexus with interstate commerce.
Respondent was a local student at a local school;
there is no indication that he had recently moved in
interstate commerce, and there is no requirement
that his possession of the firearm have any concrete
tie to interstate commerce.
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS v.
SEBELIUS, 567 U.S. ___ (2012).
“To uphold the Government's contentions here, we
would have to pile inference upon inference in a
manner that would bid fair to convert congressional
authority under the Commerce Clause to a general
police power of the sort retained by the States.
Admittedly, some of our prior cases have taken long
steps down that road, giving great deference to
congressional action. The broad language in these
opinions has suggested the possibility of additional
expansion, but we decline here to proceed any
further. To do so would require us to conclude that
the Constitution's enumeration of powers does not
presuppose something not enumerated, cf. Gibbons
v. Ogden, supra, at 195, and that there never will be
a distinction between what is truly national and
what is truly local. This we are unwilling to do.”
FACTS: Patient Protection and Affordable Care Act
(ACA) – a.k.a. Obamacare.
HELD: A majority of the justices, including Chief
Justice Roberts, agreed that the individual mandate
was not a proper use of Congress's Commerce
Clause or Necessary and Proper Clause powers.
C.J. ROBERTS: The Constitution grants Congress the
power to “regulate Commerce.” Art. I, §8, cl. 3
(emphasis added). The power to regulate commerce
presupposes the existence of commercial activity to
be regulated. If the power to “regulate” something
included the power to create it, many of the
provisions in the Constitution would be
superfluous. . . . As expansive as our cases
construing the scope of the commerce power have
been, they all have one thing in common: They
uniformly describe the power as reaching “activity.”
It is nearly impossible to avoid the word when
quoting them.
The individual mandate, however, does not regulate
existing commercial activity. It instead compels
individuals to become active in commerce by
purchasing a product, on the ground that their
failure to do so affects interstate commerce.
Construing the Commerce Clause to permit
Congress to regulate individuals precisely because
they are doing nothing would open a new and
potentially vast do- main to congressional authority.
Every day individuals do not do an infinite number
of things.
Congress addressed the insurance problem by
ordering everyone to buy insurance. Under the
Government’s theory, Congress could address the
diet problem by ordering everyone to buy
vegetables.
J. SCALIA: The primary problem with this argument
is that §5000A does not apply only to persons who
purchase all, or most, or even any, of the health care
services or goods that the mandated insurance
covers. Indeed, the main objection many have to the
Mandate is that they have no intention of
purchasing most or even any of such goods or
services and thus no need to buy insurance for
those purchases. The Government responds that the
health-care market involves “essentially universal
participation.” The principal difficulty with this
response is that it is, in the only relevant sense, not
true. It is true enough that everyone consumes
“health care,” if the term is taken to include the
purchase of a bottle of aspirin. But the health care
“market” that is the object of the Individual
Mandate not only includes but principally consists
of goods and services that the young people
primarily affected by the Mandate do not purchase.
They are quite simply not participants in that
market, and cannot be made so (and thereby
subjected to regulation) by the simple device of
defining participants to include all those who will,
later in their lifetime, probably purchase the goods
or services covered by the mandated insurance.
market participants is unprecedented, and were it
to be. Such a definition of a premise for the exercise
of national power, it would have no principled
limits.
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS v.
SEBELIUS, 567 U.S. ___ (2012).
In a variation on this attempted exercise of federal
power, the Government points out that Congress in
this Act has purported to regulate “economic and
financial decision[s] to forego [sic] health insurance
coverage and [to] attempt to self-insure,” 42 U. S. C.
§18091(2)(A), since those decisions have “a
substantial and deleterious effect on interstate
commerce,” Petitioners’ Minimum Coverage Brief
34. But as the discussion above makes clear, the
decision to forgo participation in an interstate
market is not itself commercial activity (or indeed
any activity at all) within Congress’ power to
regulate. It is true that, at the end of the day, it is
inevitable that each American will affect commerce
and become a part of it, even if not by choice. But if
every person comes within the Commerce Clause
power of Congress to regulate by the simple reason
that he will one day engage in commerce, the idea of
a limited Government power is at an end.
DISSENT:
Consistent with the Framers’ intent, we have
repeatedly emphasized that Congress’ authority
under the Commerce Clause is dependent upon
“practical” considerations, including “actual
experience.”
Until today, this Court’s pragmatic approach to
judging whether Congress validly exercised its
commerce power was guided by two familiar
principles. First, Congress has the power to regulate
economic activities “that substantially affect
interstate commerce.” This capacious power
extends even to local activities that, viewed in the
aggregate, have a substantial impact on interstate
commerce.
Second, we owe a large measure of respect to
Congress when it frames and enacts economic and
social legislation. When appraising such legislation,
we ask only (1) whether Congress had a “rational
basis” for concluding that the regulated activity
substantially affects interstate commerce, and (2)
whether there is a “reasonable connection between
the regulatory means selected and the asserted
ends.” In answering these questions, we presume
the statute under review is constitutional and may
strike it down only on a “plain showing” that
Congress acted irrationally.
Straightforward application of these principles
would require the Court to hold that the minimum
coverage provision is proper Commerce Clause
legislation. Beyond dispute, Congress had a rational
basis for concluding that the uninsured, as a class,
substantially affect interstate commerce. Those
without insurance consume billions of dollars of
health-care products and services each year. Those
goods are produced, sold, and delivered largely by
national and regional companies who routinely
transact business across state lines. The uninsured
also cross state lines to receive care. Some have
medical emergencies while away from home.
Others, when sick, go to a neighboring State that
provides better care for those who have not prepaid
for care.
Not only do those without insurance consume a
large amount of health care each year; critically, as
earlier explained, their inability to pay for a
significant portion of that consumption drives up
market prices, foists costs on other consumers, and
reduces market efficiency and stability. Given these
far-reaching effects on interstate commerce, the
decision to forgo insurance is hardly
inconsequential or equivalent to “doing nothing”; it
is, instead, an economic decision Congress has the
authority to address under the Commerce Clause.
See Wickard, 317 U. S., at 128 (“It is well established
by decisions of this Court that the power to regulate
commerce includes the power to regulate the prices
at which commodities in that commerce are dealt in
and practices affecting such prices.” (emphasis
added)).