Annotation 31 - Article I

Acts of Congress Prohibiting Commerce

Foreign Commerce: Jefferson's Embargo .--''Jefferson's Embargo'' of 1807-1808, which cut all trade with Europe, was attacked on the ground that the power to regulate commerce was the power to preserve it, not the power to destroy it. This argument was rejected by Judge Davis of the United States District Court for Massachusetts in the following words: ''A national sovereignty is created [by the Constitution]. Not an unlimited sovereignty, but a sov ereignty, as to the objects surrendered and specified, limited only by the qualification and restrictions, expressed in the Constitution. Commerce is one of those objects. The care, protection, management and control, of this great national concern, is, in my opinion, vested by the Constitution, in the Congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and Senate. . . . Power to regulate, it is said, cannot be understood to give a power to annihilate. To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to be committed? . . . The term does not necessarily include shipping or navigation; much less does it include the fisheries. Yet it never has contended, that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them. . . . [Furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and are not necessarily confined to its direct aid and advancement, the sphere of legislative discretion is, of course, more widely extended; and, in time of war, or of great impending peril, it must take a still more expanded range.

''Congress has power to declare war. It, of course, has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion. . . . Under the Confederation, . . . we find an express reservation to the State legislatures of the power to pass prohibitory commercial laws, and, as respects exportations, without any limitations. Some of them exercised this power. . . . Unless Congress, by the Constitution, possess the power in question, it still exists in the State legislatures--but this has never been claimed or pretended, since the adoption of the Federal Constitution; and the exercise of such a power by the States, would be manifestly inconsistent with the power, vested by the people in Congress, 'to regulate commerce.' Hence I infer, that the power, reserved to the States by the articles of Confederation, is surrendered to Congress, by the Constitution; unless we suppose, that, by some strange process, it has been merged or extinguished, and now exists no where.'' 766  

Foreign Commerce: Protective Tariffs .--Tariff laws have customarily contained prohibitory provisions, and such provisions have been sustained by the Court under Congress' revenue powers and under its power to regulate foreign commerce. For the Court in Board of Trustees v. United States, 767 in 1933, Chief Justice Hughes said: ''The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted. No one can be said to have a vested right to carry on foreign commerce with the United States. . . . It is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. . . . It is also true that the taxing power embraces the power to lay duties. Art. I, Sec. 8, cl. 1. But because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons v. Ogden, 9 Wheat. 1, 202. 'Under the power to regulate foreign commerce Congress imposes duties on importations, give drawbacks, pass embargo and nonintercourse laws, and make all other regulations necessary to navigation, to the safety of passengers, and the protection of property.' Groves v. Slaughter, 15 Pet. 449, 505. The laying of duties is 'a common means of executing the power.' 2 Story on the Constitution, 1088.'' 768  

Foreign Commerce: Banned Articles .--The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since 1842. In that year it forbade the importation of obscene literature or pictures from abroad. 769 Six years later, it passed an act ''to prevent the importation of spurious and adulterated drugs'' and to provide a system of inspection to make the prohibition effective. 770 Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887, the importation by Chinese nationals of smoking opium was prohibited, 771 and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it. 772 In 1897, Congress forbade the importation of any tea ''inferior in purity, quality, and fitness for consumption'' as compared with a legal standard. 773 The Act was sustained in 1904, in the leading case of Buttfield v. Stranahan. 774 In ''The Abby Dodge'' an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained but construed as not applying to sponges taken from the territorial water of a State. 775  

In Weber v. Freed, 776 an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. Chief Justice White grounded his opinion for a unanimous Court on the complete and total control over foreign commerce possessed by Congress, in contrast implicitly to the lesser power over interstate commerce. 777 And in Brolan v. United States, 778 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the question of Congress' power to prohibit foreign commerce. It has been earlier noted, however, that the purported distinction is one that the Court both previously to and subsequent to these opinions has rejected.

<a name=5   Interstate Commerce: Power to Prohibit Questioned .--The question whether Congress' power to regulate commerce ''among the several States'' embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution's interpretation, a debate the final resolution of which in favor of congressional power is an event of first importance for the future of American federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade. 779 The debate was concluded ninety-nine years later by the decision in United States v. Darby, 780 in which the Fair Labor Standards Act was sustained. 781  

Interstate Commerce: National Prohibitions and State Police Power .--The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884, the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden. 782 In 1903, power was conferred upon the Secretary of Agriculture to establish regulations to prevent the spread of such diseases through foreign or interstate commerce. 783 In 1905, the same official was authorized to lay an absolute embargo or quarantine upon all shipments of cattle from one State to another when the public necessity might demand it. 784 A statute passed in 1905 forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation. 785 In 1912, a similar exclusion of diseased nursery stock was decreed, 786 while by the same act and again by an act of 1917, 787 the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those above described for the prevention of the spread of animal disease. While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce, 788 this view has today been abandoned.

The Lottery Case .--The first case to come before the Court in which the issues discussed above were canvassed at all thoroughly was Champion v. Ames, 789 involving the act of 1895 ''for the suppression of lotteries.'' 790 An earlier act excluding lottery tickets from the mails had been upheld in the case of In re Rapier, 791 on the proposition that Congress clearly had the power to see that the very facilities furnished by it were not put to bad use. But in the case of commerce, the facilities are not ordinarily furnished by the National Government, and the right to engage in foreign and interestate commerce comes from the Constitution itself or is anterior to it.

How difficult the Court found the question produced by the act of 1895, forbidding any person to bring within the United States or to cause to be ''carried from one State to another'' any lottery ticket, or an equivalent thereof, ''for the purpose of disposing of the same,'' was shown by the fact that the case was argued three times before the Court and the fact that the Court's decision finally sustaining the act was a five-to-four decision. The opinion of the Court, on the other hand, prepared by Justice Harlan, marked an almost unqualified triumph at the time for the view that Congress' power to regulate commerce among the States included the power to prohibit it, especially to supplement and support state legislation enacted under the police power. Early in the opinion, extensive quotation is made from Chief Justice Marshall's opinion in Gibbons v. Ogden, 792 with special stress upon the definition there given of the phrase ''to regulate.'' Justice Johnson's assertion on the same occasion is also given: ''The power of a sovereign State over commerce, . . . amounts to nothing more than a power to limit and restrain it at pleasure.'' Further along is quoted with evident approval Justice Bradley's statement in Brown v. Houston, 793 that ''[t]he power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.''

Following the wake of the Lottery Case, Congress repeatedly brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in the exercise of their reserved powers, thereby aiding them in the repression of a variety of acts and deeds objectionable to public morality. The conception of the Federal System on which the Court based its validation of this legislation was stated by it in 1913 in sustaining the Mann ''White Slave'' Act in the following words: ''Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction . . . but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral.'' 794 At the same time, the Court made it plain that in prohibiting commerce among the States, Congress was equally free to support state legislative policy or to de vise a policy of its own. ''Congress,'' it said, ''may exercise this authority in aid of the policy of the State, if it sees fit to do so. It is equally clear that the policy of Congress acting independently of the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority conferred by the Constitution it is for Congress to determine what legislation will attain its purpose. The control of Congress over interstate commerce is not to be limited by State laws.'' 795  

In Brooks v. United States, 796 the Court sustained the National Motor Vehicle Theft Act 797 as a measure protective of owners of automobiles; that is, of interests in ''the State of origin.'' The statute was designed to repress automobile motor thefts, notwithstanding that such thefts antedate the interstate transportation of the article stolen. Speaking for the Court, Chief Justice Taft, at the outset, stated the general proposition that ''Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin.'' Noting ''the radical change in transportation'' brought about by the automobile, and the rise of ''[e]laborately organized conspiracies for the theft of automobiles . . . and their sale or other disposition'' in another jurisdiction from the owner's, the Court concluded that such activity ''is a gross misuse of interstate commerce. Congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions.'' The fact that stolen vehicles were ''harmless'' and did not spread harm to persons in other States on this occasion was not deemed to present any obstacle to the exercise of the regulatory power of Congress. 798  

The Darby Case .--In sustaining the Fair Labor Standards Act 799 in 1941, 800 the Court expressly overruled Hammer v. Dagenhart. 801 ''The distinction on which the [latter case] . . . was rested that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property-- a distinction which was novel when made and unsupported by any provision of the Constitution--has long since been abandoned. . . . The thesis of the opinion that the motive of the prohibition or its effect to control in some measure the use or production within the States of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. . . . The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, was a precedent, as it then had has long since been exhausted. It should be and now is overruled.'' 802  

The Commerce Clause as a Source of National Police Power

The Court has several times expressly noted that Congress' exercise of power under the commerce clause is akin to the police power exercised by the States. 803 It should follow, therefore, that Congress may achieve results unrelated to purely commercial aspects of commerce, and this result in fact has often been accomplished. Paralleling and contributing to this movement is the virtual disappearance of the distinction between interstate and intrastate commerce.

Is There an Intrastate Barrier to Congress' Commerce Power? --Not only has there been legislative advancement and judicial acquiescence in commerce clause jurisprudence, but the melding of the Nation into one economic union has been more than a little responsible for the reach of Congress' power. ''The volume of interstate commerce and the range of commonly accepted objects of government regulation have . . . expanded considerably in the last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress' commerce power.'' 804  

Reviewing the doctrinal developments laid out in the prior pages, it is evident that Congress' commerce power is fueled by four very interrelated principles of decision, some old, some of recent vintage.

First, the commerce power attaches to the crossing of state lines, and Congress has validly legislated to protect interstate travelers from harm, to prevent such travelers from being deterred in the exercise of interstate traveling, and to prevent them from being burdened. Many of the 1964 public accommodations law applications have been premised on the point that larger establishments do serve interstate travelers and that even small stores, restaurants, and the like may serve interstate travelers, and, therefore, it is permissible to regulate them to prevent or deter discrimination. 805  

Second, it may not be persons who cross state lines but some object that will or has crossed state lines, and the regulation of a purely intrastate activity may be premised on the presence of the object. Thus, the public accommodations law reached small establishments that served food and other items that had been purchased from interstate channels. 806 Congress has validly penalized convicted felons, who had no other connection to interstate commerce, for possession or receipt of firearms, which had been previously transported in interstate commerce independently of any activity by the two felons. 807 This reach is not of newly-minted origin. In United States v. Sullivan, 808 the Court sustained a conviction of misbranding, under the Federal Food, Drug and Cosmetic Act. Sullivan, a Columbus, Georgia, druggist had bought a properly labeled 1000-tablet bottle of sulfathiazole from an Atlanta wholesaler. The bottle had been shipped to the Atlanta wholesaler by a Chicago supplier six months earlier. Three months after Sullivan received the bottle, he made two retail sales of 12 tablets each, placing the tablets in boxes not labeled in strict accordance with the law. Upholding the conviction, the Court concluded that there was no question of ''the constitutional power of Congress under the commerce clause to regulate the branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce.'' 809  

Third, Congress' power reaches not only transactions or actions that occasion the crossing of state or national boundaries but extends as well to activities that, though local, ''affect'' commerce, a combination of the commerce power enhanced by the necessary and proper clause. The seminal case, of course, is Wickard v. Filburn, 810 sustaining federal regulation of a crop of wheat grown on a farm and intended solely for home consumption. The premise was that if it were never marketed, it supplied a need otherwise to be satisfied only in the market, and that if prices rose it might be induced onto the market. ''Even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.'' 811 Coverage under federal labor and wage-and-hour laws after the 1930s showed the reality of this doctrine. 812  

In upholding federal regulation of strip mining, the Court demonstrated the breadth of the ''affects'' standard. One case dealt with statutory provisions designed to preserve ''prime farmland.'' The trial court had determined that the amount of such land disturbed annually amounted to 0.006% of the total prime farmland acreage in the Nation and, thus, that the impact on commerce was ''infinitesimal'' or ''trivial.'' Disagreeing, the Court said: ''A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.'' 813 Moreover, ''[t]he pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce.'' 814 In a companion case, the Court reiterated that ''[t]he denomination of an activity as a 'local' or 'intrastate' activity does not resolve the question whether Congress may regulate it under the Commerce Clause. As previously noted, the commerce power ' extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.'' 815 Judicial review is narrow. Congress' determination of an ''effect'' must be deferred to if it is rational, and Congress must have acted reasonably in choosing the means. 816  

Fourth, a still more potent engine of regulation has been the expansion of the class-of-activities standard, which began in the ''affecting'' cases. In Perez v. United States, 817 the Court sustained the application of a federal ''loan-sharking'' law to a local culprit. The Court held that, although individual loan-sharking activities might be intrastate in nature, still it was within Congress' power to determine that the activity was within a class the activities of which did affect interstate commerce, thus affording Congress the opportunity to regulate the entire class. While the Perez Court and the congressional findings emphasized that loan-sharking was generally part of organized crime operating on a national scale and that loan-sharking was commonly used to finance organized crime's national operations, subsequent cases do not depend upon a defensible assumption of relatedness in the class.

Thus, the Court applied the federal arson statute to the attempted ''torching'' of a defendant's two-unit apartment building. The Court merely pointed to the fact that the rental of real estate ''unquestionably'' affects interstate commerce and that ''the local rental of an apartment unit is merely an element of a much broader commercial market in real estate.'' 818 The apparent test of whether aggregation of local activity can be said to affect commerce was made clear next in an antitrust context. 819 Allowing the continuation of an antitrust suit challenging a hospital's exclusion of a surgeon from practice in the hospital, the Court observed that in order to establish the required jurisdictional nexus with commerce, the appropriate focus is not on the actual effects of the conspiracy but instead is on the possible consequences for the affected market if the conspiracy is successful. The required nexus in this case was sufficient because competitive significance is to be measured by a general evaluation of the impact of the restraint on other partici pants and potential participants in the market from which the surgeon was being excluded. 820  

For the first time in almost sixty years, Supp.14 the Court invalidated a federal law as exceeding Congress' authority under the commerce clause. Supp.15 The statute was a provision making it a federal offense to possess a firearm within 1,000 feet of a school. Supp.16 The Court reviewed the doctrinal development of the commerce clause, especially the effects and aggregation tests, and reaffirmed that it is the Court's responsibility to decide whether a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged. Supp.17 The Court identified three broad categories of activity that Congress may regulate under its commerce power. ''First, Congress may regulate the use of the channels of interstate commerce. . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . . Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.'' Supp.18  

Clearly, said the Court, the criminalized activity did not implicate the first two categories. Supp.19 As for the third, the Court found an insufficient connection. First, a wide variety of regulations of ''intrastate economic activity'' has been sustained where an activity substantially affects interstate commerce. But the statute being challenged, the Court continued, was a criminal law that had nothing to do with ''commerce'' or with ''any sort of economic enterprise.'' Therefore, it could not be sustained under precedents ''upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.'' Supp.20 The provision did not contain a ''jurisdictional element which would ensure, through case- by-case inquiry, that the firearm possession in question affects interstate commerce.'' Supp.21 The existence of such a section, the Court implied, would have saved the constitutionality of the provision by requiring a showing of some connection to commerce in each particular case. Finally, the Court rejected the arguments of the Government and of the dissent that there existed a sufficient connection between the offense and interstate commerce. Supp.22 At base, the Court's concern was that accepting the attenuated connection arguments presented would result in the evisceration of federalism. ''Under the theories that the Government presents . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.'' Supp.23  

Whether this decision bespeaks a Court determination to police more closely Congress' exercise of its commerce power, so that it would be a noteworthy case, Supp.24 or whether it is rather a ''warning shot'' across the bow of Congress, urging more restraint in the exercise of power or more care in the drafting of laws is unclear. Obviously, Justice Thomas would undo much of modern commerce-clause jurisprudence. He writes that the substantial-effects test in conjunction with the aggregation principle betrays the intent of the Framers and confers a ''police power'' on Congress that it should not, indeed, does not, have. He argues that the Court in a future case should undo what it has done. Supp.25 On the other hand, Justice Kennedy, with whom Justice O'Connor joined, argued that the Court should generally not upset the stability of commerce-clause jurisprudence and should not erode the ''essential principles now in place respecting the congressional power to regulate transactions of a commercial nature.'' But, when a congressional enactment upsets the federal balance by extending federal power into areas ''to which States lay claim by right of history and expertise,'' he would have the Court intervene. Supp.26  

Thus, it seems unlikely that the Court, as now constituted, will retreat from much of the existing law in this area, but it may well be that, outside the area of economic regulation, Supp.27 the Court will exert a restraining hand to legislation such as that federalizing much state criminal law enforcement.

Civil Rights .--It had been generally established some time ago that Congress had power under the commerce clause to prohibit racial discrimination in the use of the channels of commerce. 821 The power under the clause to forbid discrimination within the States was firmly and unanimously sustained by the Court when Congress in 1964 enacted a comprehensive measure outlawing discrimination because of race or color in access to public accommodations with a requisite connection to interstate commerce. 822 Hotels and motels were declared covered, that is, declared to ''affect commerce,'' if they provided lodging to transient guests; restaurants, cafeterias, and the like, were covered only if they served or offered to serve interstate travelers or if a substantial portion of the food which they served had moved in commerce. 823 The Court sustained the Act as applied to a downtown Atlanta motel which did serve interstate travelers, 824 to an out-of- the-way restaurant in Birmingham that catered to a local clientele but which had spent 46 percent of its previous year's out-go on meat from a local supplier who had procured it from out-of-state, 825 and to a rurally-located amusement area operating a snack bar and other facilities, which advertised in a manner likely to attract an interstate clientele and that served food a substantial portion of which came from outside the State. 826  

Writing for the Court in Heart of Atlanta Motel and McClung, Justice Clark denied that Congress was disabled from regulating the operations of motels or restaurants because those operations may be, or may appear to be, ''local'' in character. ''[T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.'' 827  

But, it was objected, Congress is regulating on the basis of moral judgments and not to facilitate commercial intercourse. ''That Congress [may legislate] . . . against moral wrongs . . . rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.'' 828 The evidence did, in fact, noted the Justice, support Congress' conclusion that racial discrimination impeded interstate travel by more than 20 million black citizens, which was an impairment Congress could legislate to remove. 829  

The commerce clause basis for civil rights legislation in respect to private discrimination was important because of the understanding that Congress' power to act under the Fourteenth and Fifteenth Amendments was limited to official discrimination. 830 The Court's subsequent determination that Congress is not necessarily so limited in its power reduces greatly the importance of the commerce clause in this area. 831  

Criminal Law .--Federal criminal jurisdiction based on the commerce power, and frequently combined with the postal power, has historically been an auxiliary criminal jurisdiction. That is, Congress has made federal crimes of acts that constitutes state crimes on the basis of some contact, however tangential, with a matter subject to congressional regulation even though the federal interest in the acts may be minimal. 832 Examples of this type of federal criminal statute abound, including the Mann Act designed to outlaw interstate white slavery, 833 the Dyer Act punishing interstate transportation of stolen automobiles, 834 and the Lindbergh Law punishing interstate transportation of kidnapped persons. 835 But, just as in other areas, Congress has passed beyond a proscription of the use of interstate facilities in the commission of a crime, it has in the criminal law area expanded the scope of its jurisdiction. Typical of this expansion is a statute making it a federal offense to ''in any way or degree obstruct . . . delay . . . or affect . . . commerce . . . by robbery or extortion. . . .'' 836 With the expansion of the scope of the reach of ''commerce'' the statute potentially could reach crimes involving practically all business concerns, although it appears to be used principally against organized crime.

To date, the most far-reaching measure to be sustained by the Court has been the ''loan-sharking'' prohibition of the Consumer Credit Protection Act. 837 The title affirmatively finds that extortionate credit transactions affect interstate commerce because loan sharks are in a class largely controlled by organized crime with a substantially adverse effect on interstate commerce. Upholding the statute, the Court found that though individual loan-sharking activities may be intrastate in nature, still it is within Congress' power to determine that it was within a class the activities of which did affect interstate commerce, thus affording Congress power to regulate the entire class. 838  

Expansion of federal criminal jurisdiction proceeds apace with the outflow from each Congress. 839  


[Footnote 766] United States v. The William, 28 Fed. Cas. 614, 620-623 (No. 16,700) (D. Mass. 1808). See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 191 (1824); United States v. Marigold, 50 U.S. (9 How.) 560 (1850).

[Footnote 767]   289 U.S. 48 (1933).

[Footnote 768] Id., 57, 58.

[Footnote 769] 5 Stat. 566, 28.

[Footnote 770] 9 Stat. 237 (1848).

[Footnote 771] 24 Stat. 409.

[Footnote 772] 35 Stat. 614; 38 Stat. 275.

[Footnote 773] 29 Stat. 605.

[Footnote 774]   192 U.S. 470 (1904).

[Footnote 775]   223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947).

[Footnote 776]   239 U.S. 325 (1915).

[Footnote 777] Id., 329.

[Footnote 778]   236 U.S. 216 (1915).

[Footnote 779] Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 488 -489 (1841).

[Footnote 780]   312 U.S. 100 (1941).

[Footnote 781] The judicial history of the argument may be examined in the majority and dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251 (1918), a five-to-four decision, in which the majority held Congress not to be empowered to ban from the channels of interstate commerce goods made with child labor, since Congress' power was to prescribe the rule by which commerce was to be carried on and not to prohibit it, except with regard to those things the character of which--diseased cattle, lottery tickets--was inherently evil. With the majority opinion, compare Justice Stone's unanimous opinion in United States v. Darby, 312 U.S. 100, 112 -124 (1941), overruling Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Commerce, 3 Selected Essays on Constitutional Law (Chicago: 1938), 103.

[Footnote 782] 23 Stat. 31.

[Footnote 783] 32 Stat. 791.

[Footnote 784] 33 Stat. 1264.

[Footnote 785] 33 Stat. 1269.

[Footnote 786] 37 Stat. 315.

[Footnote 787] 39 Stat. 1165.

[Footnote 788] Illinois Central Railroad v. McKendree, 203 U.S. 514 (1906). See also United States v. DeWitt, 76 U.S. (9 Wall.) 41 (1870).

[Footnote 789] Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).

[Footnote 790] 28 Stat. 963.

[Footnote 791]   143 U.S. 110 (1892).

[Footnote 792]   22 U.S. (9 Wheat.) 1, 227 (1824).

[Footnote 793]   114 U.S. 622, 630 (1885).

[Footnote 794] Hoke v. United States, 227 U.S. 308, 322 (1913).

[Footnote 795] United States v. Hill, 248 U.S. 420, 425 (1919).

[Footnote 796]   267 U.S. 432 (1925).

[Footnote 797] 41 Stat. 324 (1919), 18 U.S.C., Sec. Sec. 2311-2313.

[Footnote 798] Id., 436-439. See also Kentucky Whip & Collar Co. v. I.C.R. Co., 299 U.S. 334 (1937).

[Footnote 799] 29 U.S.C. Sec. Sec. 201-219.

[Footnote 800] United States v. Darby, 312 U.S. 100 (1941).

[Footnote 801]   247 U.S. 251 (1918).

[Footnote 802] Id., 312 U.S., 116-117.

[Footnote 803] E.g., Brooks v. United States, 267 U.S. 432, 436 -437 (1925); United States v. Darby, 312 U.S. 100, 114 (1941). See Cushman, The National Police Power Under the Commerce Clause, 3 Selected Essays on Constitutional Law (Chicago: 1938), 62.

[Footnote 804] New York v. United States, 112 S.Ct. 2408, 2418-2419 (1992).

[Footnote 805] Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964); Daniel v. Paul, 395 U.S. 298 (1969).

[Footnote 806] Katzenbach v. McClung, 379 U.S. 294, 298 , 300-302 (1964); Daniel v. Paul, 395 U.S. 298, 305 (1969).

[Footnote 807] 'Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212 (1976). However, because such laws reach far into the traditional police powers of the States, the Court insists Congress clearly speak to its intent to cover such local activities. United States v. Bass, 404 U.S. 336 (1971). See also Rewis v. United States, 401 U.S. 808 (1971); United States v. Enmons, 410 U.S. 396 (1973). A similar tenet of construction has appeared in the Court's recent treatment of federal prosecutions of state officers for official corruption under criminal laws of general applicability. E.g., McCormick v. United States, 500 U.S. 257 (1991); McNally v. United States, 483 U.S. 350 (1987). Congress has overturned the latter case. 102 Stat. 4508, Sec. 7603, 18 U.S.C. Sec. 1346.

[Footnote 808]   332 U.S. 689 (1948).

[Footnote 809] Id., 698-699.

[Footnote 810]   317 U.S. 111 (1942).

[Footnote 811] Fry v. United States, 421 U.S. 542, 547 (1975).

[Footnote 812] See Maryland v. Wirtz, 392 U.S. 183, 188 -193 (1968).

[Footnote 813] Hodel v. Indiana, 452 U.S. 314, 323 -324 (1981).

[Footnote 814] Id., 324.

[Footnote 815] Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 281 (1981) (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)).

[Footnote 816] Id., 276, 277. The scope of review is restated in Preseault v. ICC, 494 U.S. 1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases, objected that the Court was making it appear that no constitutional limits existed under the commerce clause, whereas in fact it was necessary that a regulated activity must have a substantial effect on interstate commerce, not just some effect. He thought it a close case that the statutory provisions here met those tests. Supra, 452 U.S., 307-313.

[Footnote 817]   402 U.S. 146 (1971).

[Footnote 818] Russell v. United States, 471 U.S. 858, 862 (1985).

[Footnote 819] Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).

[Footnote 820] Id., 330-332. The decision was 5-to-4, with the dissenters, however, of the view that Congress could reach the activity, only that they thought Congress had not.

[Footnote 14 (1996 Supplement)] Carter v. Carter Coal Co., 298 U.S. 238 (1936).

[Footnote 15 (1996 Supplement)] United States v. Lopez, 514 U.S. 549 (1995). The Court was divided 5-to-4, with Chief Justice Rehnquist writing the opinion of the Court, joined by Justices O'Connor, Scalia, Kennedy, and Thomas, with dissents by Justices Stevens, Souter, Breyer, and Ginsburg.

[Footnote 16 (1996 Supplement)] 18 U.S.C. Sec. 922(q)(1)(A). Congress subsequently amended the section to make the offense jurisdictionally turn on possession of ''a firearm that has moved in or that otherwise affects interstate or foreign commerce.'' Pub. L. 104-208, 110 Stat. 3009-370.

[Footnote 17 (1996 Supplement)] 514 U.S. at 556-57, 559.

[Footnote 18 (1996 Supplement)] Id. at 558-59.

[Footnote 19 (1996 Supplement)] Id. at 559.

[Footnote 20 (1996 Supplement)] Id. at 559-61.

[Footnote 21 (1996 Supplement)] Id. at 561.

[Footnote 22 (1996 Supplement)] Id. at 563-68.

[Footnote 23 (1996 Supplement)] Id. at 564.

[Footnote 24 (1996 Supplement)] ''Not every epochal case has come in epochal trappings.'' Id. at 615 (Justice Souter dissenting) (wondering whether the case is only a misapplication of established standards or is a veering in a new direction).

[Footnote 25 (1996 Supplement)] Id. at 584-602 (Justice Thomas concurring).

[Footnote 26 (1996 Supplement)] Id. at 568-83 (Justice Kennedy concurring).

[Footnote 27 (1996 Supplement)] For a striking example, in the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995).

[Footnote 821] Boynton v. Virginia, 364 U.S. 454 (1960); Henderson v. United States, 339 U.S. 816 (1950); Mitchell v. United States, 313 U.S. 80 (1941); Morgan v. Virginia, 328 U.S. 373 (1946).

[Footnote 822] Civil Rights Act of 1964, Title II, 78 Stat. 241, 243, 42 U.S.C. Sec. 2000a et seq.

[Footnote 823] 42 U.S.C. Sec. 2000a (b).

[Footnote 824] Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

[Footnote 825] Katzenbach v. McClung, 379 U.S. 294 (1964).

[Footnote 826] Daniel v. Paul, 395 U.S. 298 (1969).

[Footnote 827] Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 301 -304 (1964).

[Footnote 828] Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964).

[Footnote 829] Id., 252-253; Katzenbach v. McClung, 379 U.S. 294, 299 -301 (1964).

[Footnote 830] Civil Rights Cases, 109 U.S. 3 (1883); United States v. Reese, 92 U.S. 214 (1876); Collins v. Hardyman, 341 U.S. 651 (1951).

[Footnote 831] The ''open housing'' provision of the 1968 Civil Rights Act, Title VIII, 82 Stat. 73, 81, 42 U.S.C. Sec. 3601, was based on the commerce clause, but in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court held that antidiscrimination-in-housing legislation could be based on the Thirteenth Amendment and made operative against private parties. Similarly, the Court has concluded that although Sec. 1 of the Fourteenth Amendment is judicially enforceable only against ''state action,'' Congress is not so limited under its enforcement authorization of Sec. 5. United States v. Guest, 383 U.S. 745, 761 , 774 (1966) (concurring opinions); Griffin v. Breckenridge, 403 U.S. 88 (1971).

[Footnote 832] E.g., Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); Lewis v. United States, 445 U.S. 55 (1980); McElroy v. United States, 455 U.S. 642 (1982).

[Footnote 833] 18 U.S.C. Sec. 2421.

[Footnote 834] 18 U.S.C. Sec. 2312.

[Footnote 835] 18 U.S.C. Sec. 1201.

[Footnote 836] 18 U.S.C. Sec. 1951. And see, 18 U.S.C. Sec. 1952.

[Footnote 837] Title II, 82 Stat. 159 (1968), 18 U.S.C. Sec. 891 et seq.

[Footnote 838] Perez v. United States, 402 U.S. 146 (1971). See also Russell v. United States, 471 U.S. 858 (1985).

[Footnote 839] E.g., laws that bar firearms within a 1000 feet of a school, 104 Stat. 4844 (1990), 18 U.S.C. Sec. 922(q), and that punish carjacking when a firearm is used. 106 Stat. 3384 (1992), 18 U.S.C. Sec. 2119.

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