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Commerce Clause: Supreme Court
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The Commerce Clause states that “[t]he Congress shall have the power...[T]o regulate Commerce with foreign Nations, and among the several states and with the Indian Tribes.” U.S. Const. art 1, § 8, ci. 3. The Supreme Court has concluded that Congress, pursuant to this clause, permissibly may regulate (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even if the threat may derive only from intrastate activities; and (3) activities with a “substantial relation to interstate commerce.”
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United States v. Lopez (1995) signaled that a more conservative Supreme Court may be ready to usher in a new era of commerce clause jurisprudence. In Lopez, the Court, in an opinion written by Chief Justice William H. Rehnquist, declared unconstitutional a 1990 congressional statute that had made it a federal crime to possess a gun on school property. The chief justice emphasized "first principles" and federalism and concluded that the possession of a gun in a local school zone was not an economic activity that might, through repetition elsewhere, "substantially affect" interstate commerce. Rather, he argued, the statute in question was an attempt by Congress to exercise a nonexistent national police power over a subject—criminal law—that was primarily of state and local concern. Significantly, Lopez marked only the second occasion since 1937 that the Court had held that Congress had exceeded its authority under the commerce clause, and the other occasion—National League of Cities v. Usery (1976)—had been overruled less than a decade after it had been decided (Garcia v. San Antonio Metro Transit Authority [1985]).
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There are two notable exceptions that can permit state laws or actions that otherwise violate the Dormant Commerce Clause to survive court challenges. The first exception occurs when Congress has legislated on the matter. See Western & Southern Life Ins. v. State Board of California, 451 U.S. 648 (1981). In this case the Dormant Commerce Clause is no longer "dormant" and the issue is a Commerce Clause issue, requiring a determination of whether Congress has approved, preempted, or left untouched the state law at issue. The second exception is "market participation exception". This occurs when the state is acting "in the market," like a business or customer, rather than as a "market regulator."[3] For example, when a state is contracting for the construction of a building or selling maps to state parks, rather than passing laws governing construction or dictating the price of state park maps, it is acting "in the market." Like any other business in such cases, a state may favor or shun certain customers or suppliers.
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The second test, commonly referred to as the burden or Pike test, presumes that the state law does not violate the Commerce Clause. [123] This test accepts some incidental burden on interstate commerce as long as the law does not discriminate against out-of-state defendants, unless that burden is clearly excessive in relation to the local benefits to be achieved by the law. [124] Using this test, the court in Pataki first accepted that protecting minors from indecent material was a legitimate state interest. [125] However, the court then determined that, because of the unique character of the Internet, the law was not likely to prevent minors from accessing obscene materials, whereas the burden on interstate commerce was significant. [126]
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It soon became evident that Congress could do almost anything it wanted under the expanded theory of the Commerce Clause. In 1942, the Supreme Court ruled against a farmer who grew his own wheat on his own land and fed it to his own chickens and cows. Wickard v. Filburn, 317 U.S. 111 (1942). Even though he never sold the wheat, much less across state lines, by not buying wheat from other farmers, he had affected interstate commerce enough to bring him within the new scope of the Commerce Clause. From that moment, most legal scholars assumed that Congress could assert power over virtually anything under the Commerce Clause.
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In the 1960s, after the Civil Rights Act, the Interstate Commerce clause was found to include cases where, in one state, an act of racial discrimination was committed. The definition of interstate commerce, during the Rehnquist court, has been interpreted more restrictively, to favor state power. There is still ample room for interpretation of the Commerce Clause.
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