The Commerce Clause
The Secret Weapon
of the United States
Congress
Elderhostel
September 29, 2006
Artemus Ward
Department of Political Science
Northern Illinois University
The Articles of Confederation
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A strong impetus for calling
the Constitutional
Convention of 1787 was the
need for national controls
over the nation’s commerce,
which had become chaotic
under the weak Articles of
Confederation.
Many states had erected
barriers to interstate trade
in an effort to protect
business enterprise for its
own citizens.
The Constitution:
Article I, Section 8
“The Congress shall have Power . . . . To
regulate Commerce . . . among the several
states.”
Gibbons v. Ogden (1824)
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New York granted a monopoly on
steamship navigation in its waters to
Ogden. However, the United States
granted navigation rights to Gibbons
under its Commerce Clause authority.
Chief Justice John Marshall spoke in
broad, expansive language in upholding
the national license. He said that
commerce is not simply traffic but
“intercourse” that included navigation.
He held that federal power is “complete
in itself” and “acknowledges no
limitations, other than are prescribed in
the Constitution.” The word “among,”
means “intermingled with” and thus
commerce among the states does not
stop at state boundaries but “may be
introduced into the interior.”
Still, he did recognize state autonomy,
declaring that the clause did not
comprehend commerce which is
completely within a state and “which
does not extend to or affect other
states.”
Congress Flexes Its Muscle
In the 60 years after Gibbons the
national government rarely resorted to
its Commerce Clause authority for
national regulations of any kind.
 The Interstate Commerce Act of 1887
regulated the railroads by establishing
the Interstate Commerce Commission
(ICC).
 In the Shreveport Rate Cases (1914) the
Supreme Court upheld the ICC’s power
to order intrastate lines to charge the
same rates as interstate carriers. The
Court observed that wherever the
“interstate and intrastate transactions of
carriers are so related that the
government of the one involves the
control of the other, it is Congress and
not the State, that is entitled to
prescribe the final and dominant rule.”
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United States v. E.C. Knight Co. (1895)
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Sherman Antitrust Act
(1890): Prohibited
monopolies.
The U.S. attempted to
dissolve a sugar processing
monopoly by the American
Sugar Refining Co. which
controlled 98% of the
industry.
The Supreme Court held that
sugar processing was a local
enterprise, occurring totally
within one state. The fact
that it was manufactured for
export to other states was
irrelevant.
Swift & Co. v. United States (1905)
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The Court began to retreat from
the rigid transportationmanufacturing distinction.
The agreed unanimously that a
price-fixing arrangement among
meat packers, although done
locally, was a restraint on
commerce.
Articulating a “stream of
commerce” theory, the Court
emphasized that the movement of
cattle from one state to another
for meat processing and
subsequent shipment of meat to
other parts of the country
constituted a “typical, constantly
recurring course,” a current or
stream of commerce, and the
effect of local price-fixing on
interstate commerce was not
“accidental, secondary, remote, or
merely probable.”
Justice Oliver Wendell Holmes, Jr.
Hammer v. Dagenhart (1918)
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With the purpose of outlawing child
labor, Congress enacted a statute in
1916 prohibiting the shipment in
interstate commerce of products
made in factories or mines by
children under 14.
The Court declared that the evil of
child labor involved manufacturing,
was local in nature, and was thus
outside of the reach of Congress.
Congress did not seek to regulate
business during the roaring ’20s.
However after the Great Depression
and the election of FDR, Congress
once again sought to use the
Commerce Clause.
Schechter Poultry v. United States (1935)
“The Sick Chicken Case”
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The National Industrial Recovery Act
(1933) authorized the president to
establish industrial codes of fair
competition including the regulation
of wages and hours.
Schechter imported chickens from
out of state but sold them locally.
They were cited for violating the new
poultry code for selling an “unfit
chicken.”
The Court held that the Schechter’s
business was purely local and had
only an indirect and remote effect on
commerce.
The Court regularly struck down
similar New Deal programs during
the first term of FDR’s presidency.
Court-Packing Plan
Claiming that the Court was overworked and filled with justices who were too
old to keep up with the load, FDR proposed to add one new justice to the
Court for every one over age 70. Though the plan was immediately seen as
an attempt to meddle with the Court for political reasons and had little
chance of passage, it became clear that the New Dealers were intent on
pressuring the Court to shift gears and uphold the New Deal.
NLRB v. Jones & Laughlin Steel (1937)
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The National Labor Relations
Act (1935) guaranteed
collective bargaining to all
employees engaged in the
production of goods for
interstate commerce and set
up a National Labor Relations
Board to regulate businesslabor relations.
In a major shift, the Court
upheld the Act abandoning
the local manufacturing and
indirect effects distinctions.
Now, any activity affecting
commerce could be
regulated.
United States v. Darby Lumber (1941)
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The Supreme Court
upheld the Fair Labor
Standards Act (1938)
which barred the use of
interstate commerce to
goods made by workers
who were not paid a
minimum wage of forty
cents and hour and
guaranteed a forty-hour
work week.
Overruled Hammer v.
Dagenhart (1918).
Wickard v. Filburn (1941)
The Second Agricultural Adjustment
Act (1938) regulated agricultural
production affecting interstate
commerce by, among other things,
setting quotas for farmers.
 Filburn grew wheat only for his own
consumption and for the animals on
his farm. When he exceeded his quota,
the government fined him.
 The Supreme Court unanimously sided
with the government reasoning that
since over 20% of the nation’s wheat
was grown for home consumption, the
overall demand for wheat was less,
thereby depressing the market.
 If individual behavior, taken in the
aggregate, has a “substantial economic
effect” on the market, then it can be
reached by the government under the
commerce clause authority.
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The New Deal Regime
During the 50 years since Wickard, Congress
expanded national regulation into myriad aspects of
national life, using the Commerce Clause as the
constitutional base, all with the Supreme Court’s
approval.
 For example, the 1964 Civil Rights Act prohibits
racial discrimination in public accommodations such
as motels, hotels, restaurants, gas stations, movie
theaters, etc. throughout the country.
 In Heart of Atlanta Motel v. United States (1964)
the Supreme Court upheld the act reasoning that
racial discrimination has a substantial negative
effect on the economy.
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The New Right Regime
In a series of recent cases, a much
more conservative Supreme Court has
put the breaks on Congress’ Commerce
Clause power.
 For example, in United States v. Lopez
(1995), the Court held 5-4 that
Congress could not pass the Gun Free
School Zones Act. They reasoned that
the Commerce Clause only allows
regulation of “economic” activity and
guns in schools was not economic in
nature.
 Similarly, in United States v. Morrison
(2000) the 5-4 Court struck down the
civil rights portions of the Violence
Against Women Act, which allowed
women to bring civil suits in federal
courts for rape and other violent acts.
Again, the Court reasoned that
violence against women was not an
economic activity.
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Chief Justice William H. Rehnquist
Gonzales v. Raich (2005)
The Court held 6-3 that
Congress, through the
Controlled Substances Act,
may ban the use of marijuana
even where states approve its
use for medicinal purposes.
 Liberal Justice John Paul
Stevens relied on Wickard and
distinguished Lopez and
Morrison. He reasoned that
whether legal or not,
marijuana growing was a
national economic activity and
like in Wickard, could
therefore be reached by
Congress.
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Conclusion
The Commerce Clause is the vehicle through
which the United States government
regulates business, labor, and more.
 In general, liberals have supported using the
commerce clause to regulate the economy
while conservatives have sought to limit its
scope.
 Do conservatives in the national government
use the commerce clause for regulatory
purposes? Abortion restrictions? Prohibitions
on certain kinds of medical research; cloning?
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