Commerce Clause

[A18]

Ever since the New Deal court packing scheme, this has pretty much been used to justify any law the fed feels like passing, with a few recent exceptions.

In United States v. Lopez, the Supreme Court ruled that Congress had power to regulate only "[1] the use of the channels of interstate commerce ... [2] the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities ... [and 3] activities having a substantial relation to interstate commerce."

However, the Rehnquist Court seems to have waivered in Gonzales v. Raich and United States v. Stewart.

How, in your opinion, should the Supreme Court interpret the Commerce Clause?

[John Dibble]

How, in your opinion, should the Supreme Court interpret the Commerce Clause?

They can regulate any goods intended to cross state borders for commercial purposes. Less in the areas of production and sale than in the actual shipment. Anything brought across borders by individuals(bought in one state and taken to another) does not count as interstate commerce - otherwise you could regulate me going across the border to buy groceries if I lived near a border, but not the people buying groceries in their own states. Producing goods for oneself is not interstate commerce - ex. growing your own wheat may indirectly affect interstate commerce, but then again almost all actions will, so there wouldn't be a point to the interstate commerce clause specifying one type of commerce if we used the 'it affects it' logic. Hotels, restaraunts, and other established buildings are not interstate commerce unless somehow operated on by a corporation or other type of company that operates such things in multiple states.

Basically, in summary - REAL INTERSTATE COMMERCE and not everything that might affect it.

[A18]

Alright, how about this: Which of these things fall under the commerce clause?

1. Price controls
2. Banning a specific good or service
3. Americans with Disabilities Act of 1990
4. Anti-trust laws
5. Minimum wage
6. Coining money
7. Establishing uniform bankruptcy laws
8. Establishing post offices and post roads
9. Punishing counterfeit currency

[Emsworth]

I favor a narrow interpretation, compared to the perversions of the modern Supreme Court. But not too narrow: John Marshall's interpretation is reasonable, and, being precedent, should be respected.

Furthermore, just because a business operates in more than one state, Congress is not justified in regulating every single aspect of that business. Only the actual commerce may be regulated, by which I mean the production, navigation, and sale of goods, and closely related activities. Tangential matters, like the wages paid to the workers, are not covered.

[John Dibble]

1. Price controls - No
2. Banning a specific good or service - They can ban shipping it across state lines, but not for personal or intrastate production and use
3. Americans with Disabilities Act of 1990 - In most cases, no
4. Anti-trust laws - In regards to interstate trusts, but not intrastate
5. Minimum wage - Only on jobs that involve crossing state borders
6. Coining money - This is given to them at another point in the Constitution, so irrelevant (clause 5 of powers clause)
7. Establishing uniform bankruptcy laws - for interstate banks, not intrastate
8. Establishing post offices and post roads - same as 6, just uses clause 7
9. Punishing counterfeit currency - see above, clause 6

[Emsworth]

1. Price controls: No
2. Banning a specific good or service: No
3. Americans with Disabilities Act of 1990: No
4. Anti-trust laws: Yes (if interstate)
5. Minimum wage: No
6. Coining money: No
7. Establishing uniform bankruptcy laws: No (personal bankruptcy has no effect on commerce)
8. Establishing post offices and post roads: No (building a road does not "regulate" anything)
9. Punishing counterfeit currency: No

[A18]

6. Coining money - This is given to them at another point in the Constitution, so irrelevant (clause 5 of powers clause)
7. Establishing uniform bankruptcy laws - for interstate banks, not intrastate
8. Establishing post offices and post roads - same as 6, just uses clause 7
9. Punishing counterfeit currency - see above, clause 6

Ah, you don't seem to understand what I'm getting at. The point is that any interpretation of the commerce clause that would allow these things to be done, must be incorrect, by virtue of the fact that the framers saw fit to include them separately.

[Emsworth]

You don't seem to understand what I'm getting at. The point is that any interpretation of the commerce clause that would allow these things to be done, must be incorrect, by virtue of the fact that the framers saw fit to include them separately.

The more broad powers can, however, overlap, especially if we include the general welfare and the elastic clauses.

[ag]

Alright, how about this: Which of these things fall under the commerce clause?

1. Price controls
Yes for any good that may be traded accross the state lines or which substantially affects directly or indirectly the supply or demand of any good that may be traded accross the state lines. No otherwise. The Federal Government should not regulate the hotel prices in LA.

2. Banning a specific good or service
Yes for any good that is traded accross state lines or substantially affects demand for or supply of any good that is traded accross state lines (legally or illegally). No otherwise. Thus, the Fed. government should not be able to allow or prohibit construction of hotels in any particular zone of LA.

3. Americans with Disabilities Act of 1990
Yes, though, probably, exception should be made for companies that do not trade accross state lines (including not importing or exporting any goods, not hiring any labor, not serving any customers, etc. outside their home state, nor competing against any companies that do). The reason, of course, that otherwise companies operating in a single state would get an unfair advantage against their competitors operating in multiple states, which, clearly, would severely affect interstate commerce.

4. Anti-trust laws
Yes for any company operating in multiple states, having competitors, suppliers or customers from other states or if it may be reasonably concluded that such a competitor, supplier or customer would exist in the absence of the trust.  No otherwise.

5. Minimum wage
See point 3.

6. Coining money - irrelevant, though would have come under the clause otherwise. If I understand it right, the other provision of the constitution prevents the states coining money in addition to the federal government, but the Fed. gov't would have been able to do it alongside the states under the Commerce clause in any case.

7. Establishing uniform bankruptcy laws
Yes, unless the company/person has no creditors, customers, employees, suppliers, etc. outside the state and would not have reasonably had any in the presence of the uniform bankruptcy laws. Pretty much any bankruptcy law crucially affects any commerce in which the company/person is involved, especially given today's integrated banking system. Of course, an exception could be reasonably argued, for instance, for an individual, whose only debt is to the state tax authority of the state he lives and works in - the state should be able to regulate his bankruptcy.

[Emsworth]

3. Americans with Disabilities Act of 1990
Yes, though, probably, exception should be made for companies that do not trade accross state lines (including not importing or exporting any goods, not hiring any labor, not serving any customers, etc. outside their home state, nor competing against any companies that do). The reason, of course, that otherwise companies operating in a single state would get an unfair advantage against their competitors operating in multiple states, which, clearly, would severely affect interstate commerce.

The ADA, like the Civil Rights Act, does not seek to regulate the commercial aspect, but rather seeks to prevent discrimination; but, the goal, although laudable, is not one that the federal government is constitutionally entitled to pursue.

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In this case, the government is not regulating interstate commerce at all.

[Peter]

1. Price controls - No
2. Banning a specific good or service - If there is no genuine interstate/national element, no
3. Americans with Disabilities Act of 1990 - Not under interstate commerce, but can be done under Congressional enforcement of the 14th Amendment
4. Anti-trust laws - If there is no genuine interstate/national element, no
5. Minimum wage - In very limited circumstances it can apply, e.g. Long distance lorry drivers, but largely, no.
6. Coining money - Yes
7. Establishing uniform bankruptcy laws - No
8. Establishing post offices and post roads - No
9. Punishing counterfeit currency - Yes

Currency would come under the interstate commerce clause in my opinion because it is almost inevitable that money once enterred into circulation will become involved in interstate commerce, thus counterfeit will also likely become a part of this same interstate commerce. The amount of money in circulation (i.e. the amount of money coined) also has an undeniably large impact on interstate commerce and therefore is worthy of federal regulation.

6. Coining money - This is given to them at another point in the Constitution, so irrelevant (clause 5 of powers clause)
7. Establishing uniform bankruptcy laws - for interstate banks, not intrastate
8. Establishing post offices and post roads - same as 6, just uses clause 7
9. Punishing counterfeit currency - see above, clause 6

Ah, you don't seem to understand what I'm getting at. The point is that any interpretation of the commerce clause that would allow these things to be done, must be incorrect, by virtue of the fact that the framers saw fit to include them separately.

I don't agree with this argument:

Take the Bill of Rights for example - In the 5th we are told that every person has the right to due process of law. If we then examine other parts of the Bill of Rights, we find other things that we could find to be completely within due process of law, for example, the right to have Assistance of Counsel contained in the 6th Amendment. If this is not a part of the procedural due process guarantee then I do not know what is.

It is not that James Madison enjoyed repitition, far from it: The Framers wanted a broad protection (the right to due process), but were also aware of definite specific protections that they wanted in there. So, in addition to the broader protection, they also included their specific protections to ensure that even if their broader protection was reduced to an inkblot later in history, the specific protections would be near impossible to overcome.

Also, in the case of coining currency, the Founders wanted to absolutely forbid the States from doing this, so they specifically stated such in Article I Section 9. It then of course made sense to make sure that the power was granted to Congress in Section 8, even though it would have been included in the Interstate commerce power.

[A18]

3. Americans with Disabilities Act of 1990 - Not under interstate commerce, but can be done under Congressional enforcement of the 14th Amendment

The 14th amendment does not restrict private entities. To say the 14th amendment allows the government to do this is absurd.

[Emsworth]

3. Americans with Disabilities Act of 1990 - Not under interstate commerce, but can be done under Congressional enforcement of the 14th Amendment

The 14th amendment does not restrict private entities.

Precisely: and the Supreme Court agreed in the Civil Rights Cases, IIRC.

[Peter]

Sorry, I was referring to what little I know of the ADA that I saw in Tennessee v. Lane. I was referring to this being constitutional.

Regulation of private entities is in all likelihood, unconstitutional.

[A18]

I favor a narrow interpretation, compared to the perversions of the modern Supreme Court. But not too narrow: John Marshall's interpretation is reasonable, and, being precedent, should be respected.

Furthermore, just because a business operates in more than one state, Congress is not justified in regulating every single aspect of that business. Only the actual commerce may be regulated, by which I mean the production, navigation, and sale of goods, and closely related activities. Tangential matters, like the wages paid to the workers, are not covered.

Marshall's definition of commerce was the shipping of goods. Production and sale would not necessarily be covered under that interpretation.

[MODU]

They use it the same was as I used the line "Other duties as directed" on job descriptions for new hires.  When something comes up which you want done, but isn't clearly defined in any other point, you pull out the trump card. 

[Emsworth]

I favor a narrow interpretation, compared to the perversions of the modern Supreme Court. But not too narrow: John Marshall's interpretation is reasonable, and, being precedent, should be respected.

Marshall's definition of commerce was the shipping of goods. Production and sale would not necessarily be covered under that interpretation.

No, I disagree. He seems to admit in Gibbons v. Ogden that buying and selling (if not production) are included.

[A18]

Excerpts? What part of the ruling?

[Emsworth]

Excerpts? What part of the ruling?

Sorry, I seem to have forgotten to provide them in my previous post:

"The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter."

He appears to accept that buying and selling are governable under the commerce clause (presumably with the proviso that the buying and selling is related to "commerce among the states").

Similarly:

"Commerce, undoubtedly, is traffic, but it is something more - it is intercourse."

He agrees that commerce is more than the mere transfer of goods from place to place.