Commerce and Its Discontents
Article I, section 8 of the constitution provides that “The Congress shall have the Power … To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” This provision is referred to as the Commerce Clause, but in fact it contains three separate commerce clauses: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.
Although you might think that the power to regulate commerce is a relatively narrow authority over the exchange of goods and services, Congress’s commerce power has been interpreted so broadly that it has come to serve effectively as a grant of general powers. Such an indiscriminate legislative authority should be foreclosed to Congress by the text of the constitution. Unlike state legislatures, which possess authority to regulate broadly for the public health, safety, and welfare (called “police powers”), Congress is a body limited to its enumerated powers. Art. I, sec. 8 provides an exclusive list of what Congress can do. If it’s not on the list, Congress can’t do it.
But a promiscuous interpretation of what constitutes “commerce,” coupled with the increasingly pervasive and intertwined nature of commercial activity in our society has allowed Congress over the course of American history to carve out for itself a ubiquitous legislative jurisdiction that seems indistinguishable from the sort of general authority to legislate that should be reserved to the states.
I have previously commented on the protean nature of the concept of “commerce” in the constitution on several occasions. I found for example that the most likely textual source for Congress’s immigration power is the Foreign Commerce Clause. I similarly argued that the Indian Commerce Clause provides the best textual source for Congress’s special relationship with Indian tribes. I also described how, after the Supreme Court neutered Congress’s enforcement power under the Fourteenth Amendment in the Civil Rights Cases, the Interstate Commerce Clause filled the breach to support the constitutionality of the Civil Rights Act of 1964.
And the argument for such a broad interpretation of “commerce” has some strong originalist support. In early cases like McCulloch v. Maryland and Gibbons v. Ogden, Chief Justice Marshall sketched out pretty wide authority for Congress to enact legislation “necessary and proper” to regulate all manner of commercial activities and all of the many ways those activities impact our lives. In the early nineteenth century, however, a broad understanding of commerce was not as problematic as it would later become, due to the relatively isolated and diffuse nature of business interactions at that time. Even if the scope of commerce was broad, it still had to be with a foreign nation, between the states, or with an Indian tribe to fall within Congress’s ambit, and a large part of economic activity in that era was local.
But after the Civil War, the nation’s interstate and international commerce exploded with America’s Industrial Revolution. An expansive understanding of commerce in this new economic environment meant that the application of federal power potentially radiated out to touch more and more aspects of life previously beyond its scope. Meanwhile however, as I have described, the Supreme Court was entering its Lochner phase, during which it applied a kind of economic substantive due process1 to strike down state laws regulating economic affairs that the court held violated constitutionally protected rights like property and freedom of contract.
At the federal level, the dogmatically laissez-faire court utilized the commerce clause to rein in congressional efforts to smooth the edges of rapid industrialization. The court struck down or limited the application of federal laws restricting abusive labor practices, protecting consumers, supporting collective bargaining, and breaking up monopolies, by applying a relatively narrow conception of the commerce power. The court only reversed course after FDR threatened to expand the court. A last minute change in personnel, known as the “switch in time that saved nine,” caused the court to execute an abrupt constitutional one-eighty. Thereafter, the court rubber stamped New Deal economic legislation.
The high water mark of expansive commerce clause jurisprudence in this era was the 1942 decision of Wickard v. Filburn. That case challenged the constitutionality of the Agricultural Adjustment Act of 1938, which established quotas on wheat production to stabilize prices. Roscoe Filburn produced more than his allotted amount but argued that Congress lacked power to regulate his wheat because it was produced for consumption on his farm and not for sale. Thus, it should not fall within the scope of interstate commerce.
The court disagreed, because if Filburn had not produced his own wheat, he would have had to buy it on the market. Thus, his intra-state non-participation in economic activity had an effect on interstate commerce. And while Filburn was just one guy, the aggregate effect of thousands of farmers not buying wheat could have had significant effects on wheat prices in the national market. Therefore, the Interstate Commerce Clause gave Congress power to legislate intra-state non-commerce, if in the aggregate it affected commerce.
Nothing lasts forever. Fast forward five decades to the Reagan Revolution, and the resulting Rehnquist court. The burgeoning conservative legal movement was at that time dead set on curbing federal power, and saw congressional abuse of the commerce power as a prime target. In 1995, the court struck down the Gun-Free School Zones Act of 1990 as beyond the scope of the Interstate Commerce Clause in U.S. v. Lopez. Possession of a firearm in a school zone, the majority said, was not interstate commerce. Lopez was the first time the court had struck down a federal law on that basis since 1937.
Then, in 2000, the court held in U.S. v. Morrison that a provision of the Violence Against Women Act of 1994 that gave victims of domestic violence a federal cause of action against their abusers was beyond the power of Congress. Getting your lights punched out by your spouse was not interstate commerce.
But hold onto your butts, because next we got Gonzales v. Raich in 2005. There, the court held that growing medicinal pot for home consumption was economic activity that may be criminalized under the Controlled Substances Act. The court analogized the case to the facts of Wickard, with marijuana standing in for wheat. Not participating in the drug market was interstate commerce.
Finally, in a truly convoluted decision in 2012’s NFIB v. Sebelius, a majority of the court agreed that the Obamacare individual mandate exceeded the commerce power.2 Chief Justice Roberts, for his part, thought forcing people to buy health insurance was just a bridge too far, even from Wickard. The Commerce Clause was “not a general license to regulate an individual from cradle to grave.” Not participating in the insurance market was not interstate commerce.
Can somebody stop this ride? I want to get off.
That label is anachronistic, but it conveys the basic idea.
But that holding apparently had no precedential significance because four of the justices who agreed with that idea did not concur in the judgment upholding the law under the taxing power. As I have mentioned in connection with the plurality problem, only the opinions of those justices concurring in the judgment should be counted, under a case called Marks v. U.S.