Lecture 24 The Commerce Power Part 1: Overview and Foundations

This chapter and lecture The chapter deals with the powers Congress has under the Commerce Clause It is also long Pages 415-520 19 major cases This lecture will provide an overview and looking into the foundations of this power Pages 415-422

Cases this Chapter Gibbons v. Ogden (1824) United States v. E.C. Knight Company (1895) Stafford v. Wallace (1922) Champion v. Ames (1903) Hammer v. Dagenhart (1918) Schechter Poultry Corp. v. United States (19335) National Labor Relations Board v. Jones McLaughlin Steel Corp. (1937) United States v. Darby (1941) Wickard v. Filburn (1942) Heart of Atlanta Motel, Inc. v. United States (1964) United States v. Lopez (1995) United States v. Morrison (2000) Gonzales v. Raich (2005) National Federation of Independent Businesses v. Sebelius (2012) Cooley v. Board of Wardens (1852) Southern Pacific Company v. Arizona (1945) Hunt v. Washington State Apple Advertising Commission (1977) Maine v. Taylor (1986) Granholm v. Heald (2005)

Overview The language Congress shall have the power to … Clause 3- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes Questions to consider What is regulation? What is commerce? What is interstate commerce? What powers does this grant Congress? What powers remain with the states? This chapter addresses these questions topically

Gibbons v. Ogden (1824) Gibbons v. Ogden (1824) Background Congress immediately seizes the power over commerce with other nations But they already had the power to impose tariffs This was only to the Congress, not states Congress was slow to take reigns over interstate commerce States retain power over intrastate commerce Remember at the time, people didn’t freely move as much as they do now

Gibbons v. Ogden- II Background of the case 1798- The State of New York grants Livingston a monopoly over steamboats over the entire state, including New York Harbor and the Hudson River The reason initially was that it was not profitable, but it later became so They then got a monopoly over the Port of New Orleans In response the New York monopoly, other states retaliated Especially with New Jersey Ogden and Gibbons formed a partnership to transport passengers from New Jersey to NYC New York monopolists pressured Ogden to terminate the partnership Gibbons joined with Cornelius Vanderbilt- the entered the waters in violation of the monopoly Ogden convinced New York courts to enjoin Gibbons from entering New York waters Gibbons appeals to the Supreme Court

Gibbons v. Ogden- III Question: Arguments Did New York exercise authority in an area reserved to Congress- regulation of interstate commerce? Arguments For Gibbons (Violates Commerce Clause) The commerce power is not exclusive to Congress, but in this case it is a federal power and thus does not remain with the state The Constitution decided to transfer regulation of commerce from states to the federal government Congress may establish ferries and turnpikes and may regulate in other ways that touch the interior of states

Gibbons v. Ogden- IV Arguments For Ogden (state power) All powers must be expressly delegated or they are reserved to the state under the Tenth Amendment The commerce power is concurrent, so long as the state law does not interfere with the Constitution or a federal law The power is limited to between states, thus not available for Congress to regulate within a state This law does not regulate commerce, but internal trade and right of navigation within a state

Gibbons v. Ogden- V Chief Justice Marshall writes for a unanimous Court Commerce is more than traffic, it is intercourse (more than buying and selling) It includes navigation Everyone at the time understood it to include navigation It includes all trade with other nations Commerce among the states does not stop at their external boundaries, but may be introduced into their interiors But not to things completely internal Does it affect other states? If yes, Congress can regulate If no, Congress cannot regulate

Gibbons v. Ogden- VI More from Marshall Power to regulate Can states regulate commerce with foreign national and among the states while Congress is regulating it at the same time? When in conflict the state law must yield to the federal one State laws inhibiting vessels from free passage on the waterways are in direct collision with the federal law

Next Lecture We will move to the Commerce power during the pre-New Deal era Pages 422-439