LYCOS RETRIEVER 
Commerce Clause: Supreme Court
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In a novel application of the Commerce Clause, a federal court decided in United States v. Bishop Processing Co., 287 F. Supp. 624 (D.C. Md. 1968), that the movement of air pollution across state lines from Maryland to Delaware constituted interstate commerce subject to congressional regulation. The plaintiff, the United States, sought an injunction under the federal Clean Air Act (42 U.S.C.A. § 7401 et seq. [1955]) to prevent the operation of the Maryland Bishop Processing Company, a fat-rendering plant, until it installed devices to eliminate its emission of noxious odors.
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The central vision of limited Commerce Clause power lasted until Franklin Delano Roosevelt’s presidency in the 1930s. Under FDR’s New Deal, the federal role ballooned out of all recognition. During FDR’s first few years in power, the Supreme Court struck down one New Deal law after another, holding again and again that they exceeded Congress’ constitutional powers.
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Besides regulating trade between states, the Commerce Clause is ... the principal source of federal authority regarding Native Americans. The Supreme Court defined the legal status of Indian tribes in Cherokee Nation v. Georgia (1831), in which Georgia tried to exercise jurisdiction over Cherokee land and people. As one of the “Five Civilized Tribes,” the Cherokees had adopted white people’s laws and customs, including owning slaves. Chief Justice John Marshall held for the Court’s majority that Indian tribes were “domestic dependent nations,” and the next year in Worcester v. Georgia struck down Georgia’s regulation of the Cherokees as unconstitutional under the Commerce and Treaty Clauses.
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Despite some caterwauling to the contrary, this recent "revival" of the Commerce Clause as a limited power was not revolutionary. Neither of these statutes regulated conduct that was either interstate or economic in nature. Neither law logically required uniformity across the States. Although the Court had not invalidated a federal statute on these grounds in many years, the Court need not have, and did not, overrule the New Deal cases to reach its conclusions.
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[G]ive credit where credit is due: Scalia's reading of the Commerce Clause in Raich is pretty clear. It tells lower courts they should avoid inquiring whether regulated conduct "affects" "interstate commerce," when Congress targets that conduct as part of a detailed regulatory scheme. That's easy for courts to apply, because it guts the Commerce Clause like a fresh mackerel.
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Protecting religion under the Commerce Clause is foolish because it invites a swift and well-deserved rebuke from the Supreme Court. The Supreme Court has struck down religious liberties twice in the last decade. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court ruled that the First Amendment did not protect religious believers from “facially neutral, generally applicable laws.” Then, when Congress enacted the Religious Freedom Restoration Act in 1993, the Supreme Court struck it down, too, in City of Boerne v. Flores, 521 U.S. 507 (1997).
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