How Has the Supreme Court A Interpreted the Commerce Clause? BACKGROUND ESSAY

When the Founders wrote the commerce, which the court defined as Constitution in 1787, they wanted to fix “commerce which concerns more States the economic problems of the 1780s than one.” by creating a national government that One of the first twentieth century would be able to collect taxes, regulate cases to deal with the Commerce foreign trade, and, most important, Clause was Hammer v. Dagenhart create a common commercial policy (1918). The Court ruled that the federal among state governments. In the government could not outlaw child Federalist Papers, Founders James labor in manufacturing activities that Madison and Alexander Hamilton took place in one state and did not argued that the federal government cross state lines. The justices might needed these expanded powers in have agreed that it was a worthy goal order to turn the United States into a to protect young children from long large free-trade zone and impartially work hours, but the Court did not agree balance conflicting state economic that the federal government had the interests to protect rights. They also power to legislate on this issue. The argued for a strong commercial policy Court found that the Tenth Amendment to open up markets for foreign trade. left this power to the states and that The reach of the Commerce Clause, Congress could not make rules related found in Article I, Section 8 of the to the production of goods where Constitution, is an important part interstate commerce was not involved. of the debate about federal power. It states, “Congress shall have the The New Deal power... to regulate commerce with Midway through the twentieth foreign Nations, and among the several century, Congress started using States, and with the Indian Tribes.” the Commerce Clause to justify The first Supreme Court case on this many new types of laws to regulate part of the Constitution was Gibbons not just commerce, but also the v. Ogden in 1824. The Court held conditions of economic and social that the Commerce Clause granted life. The Commerce Clause has been Congress “the power to regulate; a significant basis for the growth of that is, to prescribe [make] the rule by federal power. The Supreme Court which commerce is to be governed.” changed its way of thinking in the 1930s That power extended to interstate under great political stress. President

© THE BILL OF RIGHTS INSTITUTE Preserving the Bill of Rights Franklin Delano Roosevelt proposed, Lopez, Morrison, and Raich and Congress passed, many new After 59 years of upholding programs called the “New Deal.” One legislation, in 1995 the Court ruled program was Social Security, which gave that Congress had gone too far under pensions and aid to the disabled and the Commerce Clause. In United elderly through taxes paid by younger States v. Lopez (1995), the Court citizens. Other programs regulated the struck down a federal law that created stock market. At first, the Supreme Court gun-free school zones. Congress had ruled in several cases that Congress argued that because schools prepare had no authority to enact such laws. In people for the business world, there 1937, President Roosevelt spoke out was a connection between schools against the Supreme Court’s decisions and interstate commerce. Therefore, on the New Deal legislation. He wanted Congress argued, it could regulate guns to be able to add one new justice for in school. The Court, however, ruled every current justice over the age of that the law dealt only with possession 70. Most experts view his idea, which of arms and not interstate commerce. was described as “Court Packing,” as The Court appeared to be continuing in a political plan to help his legislation. this direction when it overturned parts Some of the political conflict eased when of the Violence Against Women Act one justice began voting to support the in the 2000 case of U.S. v. Morrison. New Deal. Another justice retired and The Court said that the Commerce was replaced by a Roosevelt-appointed Clause did not give Congress the supporter of the New Deal programs. power to allow rape victims to sue their The new majority deemed the attackers in federal court for money increased federal power of New Deal damages. In Gonzalez v. Raich (2005), legislation to be constitutional. The however, the Court did not continue Supreme Court was going in a new this trend. It ruled that Congress could direction. Congress was now able to ban marijuana throughout the nation create laws regulating, banning, and even when an individual state had laws supporting a wide range of activities, allowing individuals to grow their own and it did. Laws would be upheld as marijuana for medicinal purposes. The long as the Court was convinced that Court reasoned that the policy within the regulated activities had a close that single state would affect supply and and important relation to interstate demand, and therefore Congress’s ban commerce. Federal power grew was related to interstate commerce. dramatically for over fifty years.

Preserving the Bill of Rights © THE BILL OF RIGHTS INSTITUTE The Affordable Care Act Tax Clause – which gives Congress the In NFIB v. Sebelius (2012), the power to impose taxes. In a 5-4 decision, Supreme Court upheld much of the the Supreme Court rejected the first two 2010 Affordable Care Act (ACA). The arguments, but upheld the mandate on case involved a lawsuit by 26 state the third. In other words, the Court ruled governments and multiple private that the Commerce Clause did not give plaintiffs, including the National Congress the power to force Americans Federation of Independent Business— to buy health insurance, but that the the nation’s largest small business mandate was a constitutional use of its organization. They challenged the taxing power. Although the text of the constitutionality of two key parts of ACA refers to a “penalty” and not a the ACA: the part that required most “tax,” Chief Justice Roberts reasoned Americans to purchase government that it was not a real penalty because approved health insurance by 2014, and it was “not a legal command to buy a part that forces state governments to insurance.” It was merely a requirement greatly expand the Medicaid health care that violators pay a fine. He also argued program for the poor, or risk losing all that the Court had a duty to interpret their existing Medicaid funds. the law as a tax, if such an interpretation The federal government claimed that were at all possible, so as to assume the individual mandate was allowed Congress acted in the interest of the under the Commerce Clause, the people and to avoid ruling that one of its Necessary and Proper Clause, and the laws was unconstitutional.

Comprehension Questions: 1. What was the purpose of the Commerce Clause? 2. Why is Gibbons v. Ogden (1824) an important federalism case? 3. Describe the shift that began around the time of the New Deal in the Supreme Court’s interpretation of the Commerce Clause. 4. Do you think the Founders thought the Commerce Clause would be used to expand the power of the federal government? Why or why not? 5. What are the advantages or disadvantages of giving the federal government more power over states and individuals?

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