Key Cases on the Commerce Clause [No. 86]


So the Commerce Clause has been litigated
in the Supreme Court probably more often than any other structural provision of the Constitution. And the most important early case was called
Gibbons against Ogden and it involved a state law that granted a monopoly to people operating
a steamship across the Hudson River between New York and New Jersey. And the Supreme Court held that a federal
law, which licensed a competitor, trumped the state law and thus the the national government’s
ability to be able to promote commerce or protect commerce against local monopoly legislation
was upheld. This can be seen as a very nationalistic decision
in a sense, but I think it’s exactly what the Commerce Clause was intended for. It was giving the national government the
ability to protect a national market against the neo-mercantilist uh policies of of individual
states. In the decades after Gibbon, the Supreme Court
tended to distinguish between commerce, which it understood to be the transportation and
sale of goods, versus the production of goods, so agriculture and manufacturing were not
considered to be directly regulable by a national government, but trade was. As the national economy grew more integrated,
the Congress began passing major economic legislation, like the antitrust acts, ah which
regulated not just commerce, but also manufacturing. And in several cases around the time of the
New Deal, the court came to the conclusion that all economic activity, including manufacturing
and agriculture, which was destined for a national market, was directly comprehended
within the Commerce Clause and so you had cases like United States versus Darby: there
could be national labor regulation in manufacturing. The farthest and most extreme case of the
period, Wickard versus Filburn, regulated agriculture all the way down to the production
of wheat by a farmer for consumption by his family and by his own animals. And that’s where things rested for many decades
after that and almost anything Congress did to regulate economic activity was going to
be upheld. And then in more recent times, as Congress
has passed laws regulating activities that aren’t even economic – there were two cases
called Lopez and Morrison – the court has begun to draw lines and and actually strike
down some acts of Congress uh on the ground that what was being regulated was neither
economic, nor interstate. And then the final example of this, and probably
the most controversial ah was the Supreme Court’s consideration of the Affordable Care
Act, or Obamacare, and its requirement that everyone purchase approved health insurance
policies. And the Supreme Court, in a very contentious
five to four majority, held that the Commerce Clause does not empower the government to
do that, that when individuals choose not to purchase a product, that they are not engaged
in commerce and since they’re not engaged in commerce, they’re not doing something Congress
can regulate. In effect, Congress can regulate commerce
that takes place, but it can’t force people into commerce. And so the court did, in fact, uphold uh the
individual mandate, but not under the Commerce Clause.

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