1. CONSTITUTIONAL LAW SPRING 2008 PROF. FISCHER CLASS 10 January 30, 2008 The Commerce Clause II Interpretation: 1937-present

2. From 1937 change in approach to commerce clause interpretation

3. What factors led to change in approach?

4. Election of 1936: Landslide for Roosevelt

5. Roosevelt’s Court-packing plan

6. NLRB v. Jones & Laughlin (1937) [C p. 131] Chief Justice Charles Evans Hughes wrote the majority opinion of the Court 5-4 decision (the “Four Horsemen” all dissented)

7. Change in approach from 1937 Meaning of “commerce” Meaning of “among the... States” Whether Tenth Amendment operates as a limit on the commerce power of Congress

8. U.S. v. Darby (1941) [C p. 134] Justice Stone delivered opinion of the Court (unanimous)

9. Wickard v. Filburn (1942) [C p. 136] Justice Robert Jackson delivered opinion of a unanimous Court

10. Hodel v. Virginia Surface Mining & Recl. Ass’n (1981) [C p. 143] Majority opinion by Marshall (joined by Brennan, Stewart, White, Blackmun, Powell, Stevens] pay attention to Rehnquist’s concurring opinion

11. CIVIL RIGHTS LAWS: COMMERCE POWER USED TO PROHIBIT DISCRIMINATION E.g. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) [C p. 139] and Katzenbach v. McClung, 379 U.S. 294 (1964) (CB p. 141)

12. CRIMINAL LAWS Perez v. United States, 402 U.S. 146 (1971) [C p. 143] Majority opinion by Douglas, joined by Burger, Black, Brennan, White, Mashall, and Blackmun Dissent by Stewart

13. 3 THINGS CAN BE REGULATED UNDER THE COMMERCE POWER 1. Channels of interstate commerce (e.g. roads, terms/conditions on which goods can be sold interstate) 2. Instrumentalities of interstate commerce (e.g airlines, railroads, trucking) and persons/things in interstate commerce 3. Activity that [substantially] affects interstate commerce (read together with N & P clause)

14. U.S. v. Darby (1941) [C p. 134] Justice Stone delivered opinion of the Court (unanimous) Tenth Amendment “states but a truism that all is retained which has not been surrendered.”

15. National League of Cities v. Usery (1976) [C p. 145] 5-4 Majority opinion written by Justice Rehnquist (joined by Burger, Stewart, Blackmun, and Powell) Concurring opinion by Blackmun Dissent by Brennan joined by White and Marshall

16. Garcia v. San Antonio Metropolitan Transit Authority (1985) [C p.148] 5-4 Justice Blackmun wrote the majority opinion, joined by Brennan, White, Marshall, and Stevens Powell, Rehnquist, O’Connor, Burger dissent