1. Constitutional Law I Federal Power II (Gibbons v. Ogden) Feb. 10, 2006

2. Spring, 2006Con Law I - Manheim2 Federalism & States’ Rights The interplay between federal and state power Both governments regulate private parties Because of federal supremacy,  federal law preempts state law  broad federal power means narrower state power  narrow federal power means broader state power

3. Spring, 2006Con Law I - Manheim3 Federalism – Forum for Mediating Court Text of constitution suggest that allocation of power is a judicial question  Art. I, § 1: "All legislative Powers herein granted …"  Amd X: "The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Congress Structure of federal gov’t suggests that division of power is determined by states' in Congress  Composition of congress; electoral college  Amd XVII – Direct election of Senators

4. Spring, 2006Con Law I - Manheim4 The Commerce Power Disputes over federalism often appear in the context of the commerce power Art. I, § 8, cl. 3: "The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Must define "commerce" Must define "among" Must define "regulate"

5. Spring, 2006Con Law I - Manheim5 Thomas GibbonsAaron Ogden v.

6. Spring, 2006Con Law I - Manheim6 Robert Fulton Steamboat Clermont

7. Spring, 2006Con Law I - Manheim7 Gibbons v. Ogden (1824) New York law grants exclusive franchise to conduct ferry business between NY and NJ Federal law grants franchise to Gibbons to engage in "coasting trade"

8. Spring, 2006Con Law I - Manheim8 Gibbons v. Ogden (1824) New York law grants exclusive franchise to conduct ferry business between NY and NJ Federal law grants franchise to Gibbons to engage in "coasting trade" Is the NY law constitutional? Does it violate any limitation in constitution? Is it preempted by the federal law? might be, but only if federal law is valid

9. Spring, 2006Con Law I - Manheim9 Gibbons v. Ogden (1824) New York law grants exclusive franchise to conduct ferry business between NY and NJ Federal law grants franchise to Gibbons to engage in "coasting trade" Is the NY law constitutional? Does it violate any limitation in constitution? Is it preempted by the federal law? might be, but only if federal law is valid Is the federal law constitutional? Does it exceed congress' commerce power?

10. Spring, 2006Con Law I - Manheim10 Meaning of "Commerce" Interpretive Methodologies Originalism  “The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government”  “Convention must have used the word in that sense”  Historical validation “power [over navigation] has been exercised from the commencement of the government, has been exercised with the consent of all” Textualism  See Art. I § 9, ¶ 6 (limiting power over navigation)

11. Spring, 2006Con Law I - Manheim11 Does Commerce include Navigation? Traffic Buying and selling of commodities Intercourse All species of commercial transactions

12. Spring, 2006Con Law I - Manheim12 Extent of Congress’ power Marshall rejects “strict construction” Expansive interpretation of "commerce" these words comprehend every species of commercial intercourse No sort of trade can be carried on... to which this power does not extend Expansive interpretation of "among" "Intermingled with"

13. Spring, 2006Con Law I - Manheim13 within Does congress’ power extend to commerce within the States? Commerce among the States must, of neces- sity, be commerce with the States if a foreign voyage may commence or ter- minate at a port within a State, then the power of Congress may be exercised within a State.

14. Spring, 2006Con Law I - Manheim14 If congress’ power extends to inter-state commerce, can this be exercised without regulating some aspect of commerce within the states themselves?

15. Spring, 2006Con Law I - Manheim15 What portion of the ferry trip between NY and NJ does congress have power to regulate? Can it regulate the intra-state portion? Wholly intra-state?

16. Spring, 2006Con Law I - Manheim16 "The genius and character of the whole gov't seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state."

17. Spring, 2006Con Law I - Manheim17 Gibbons' affect on NY population New York Philadelphia

18. Spring, 2006Con Law I - Manheim18 Johnson Concurrence Expansive interpretation of “commerce” History/framers’ intent/nature of a constitution All “vital agents of commercial prosperity” Why write separately Federal power over commerce is exclusive  So as to leave unregulated as congress intends If exclusive, then NY has no power to regulate  Even had congress never licensed Gibbons Marshall’s view on this:  “There is great force in this argument, and the Court is not satisfied that is has been refuted.”

19. Spring, 2006Con Law I - Manheim19 The License Cases (1847) Marshall replaced by Taney (1836) Far less “federalist” in his views On exclusivity of federal commerce power “mere grant of power to the general government cannot be construed to be an absolute prohibition of any power over the same subject by the States.” If not exclusive, state laws can still be preempted If exclusive, then sharper distinction needs to be drawn between matters of interstate commerce and matters of “internal police.”

20. Spring, 2006Con Law I - Manheim20 Cooley v. Bd. of Wardens (1851) Issue: Do states have power to regulate local navigation? Rule (version 1): Navigation is part of commerce Congress’ power over commerce is concurrent States have retained power to regulate navigation  Unless congress denies (preempts) that power Rule (version 2): Navigation is part of commerce Congress’ power over commerce is exclusive States have no retained power to regulate navig’n

21. Spring, 2006Con Law I - Manheim21 Cooley v. Bd. of Wardens (1851) Rule (version 2): States have no retained power to regulate navig’n But, Congress can adopt state law as federal law.  Was that done here? Can Congress delegate power back to the States?  Not if the constitution divested states of such power Compare Art. I § 10  Perhaps if divested by implication Rule (version 3): The grant of power over commerce to congress  Is sometimes exclusive, and  Sometimes concurrent Depends on the nature of the subject being regulated

22. Spring, 2006Con Law I - Manheim22 Cooley v. Bd. of Wardens (1851) Matters capable only of exclusive regulation (that “admit of only one uniform system”): Channels of interstate commerce  Air routes, sea lanes Instrumentalities of interstate commerce  Airplanes, ships Matters capable of concurrent regulation (“best provided by many different systems”): Wholly intrastate activities  Trade; health, safety & morals (police matters) Which is port pilotage? Contrast captains