[raygun]

What New Deal Commerce Clause are you talking about? It looks like the interpretation of the Commerce Clause during and after the New Deal fell to Justice John Marshall's interpretation respecting commerce (as rendered in Gibbons v Ogden in 1824).

Of course, the power to regulate commerce is the power to prescribe conditions and rules for the carrying-on of commercial transactions, the keeping-free of channels of commerce, the regulating of prices and terms of sale. Even if the clause granted only this power, the scope would be wide, but it extends to include many more purposes than these. ''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. In doing this, it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce. - Brooks v. United States, 267 U.S. 432, 436 -437 (1925)

Case law pertainent to stare decisis respecting the Commerce clause:

• Gibbons v. Ogden (1824):
  • commerce involves more than buying and selling itself, but also all commercial intercourse, hence including navigation and transportation
  • commerce among states begins in one state and ends in another; it doesn't end when the activity in question crosses the last state boundary
  • Congress' power to regulate such interstate commerce is plenary, that is, complete except as otherwise explicitly limited by the Constitution.

• Id., WILLSON v. BLACK-BIRD CREEK MARSH CO., 27 U.S. 245 (1829):
  • origination of Dormant Commerce Clause
  • state regulation not repugnant to Congressional power of regulation of commerce (absent Congressional action)

• COOLEY v. BOARD OF WARDENS OF PORT OF PHILADELPHIA, TO, 53 U.S. 299 (1851)
  • Dormant Commerce Clause - partial exclusivity
  • validity of state acts determined based on a distinction between those subjects of commerce which imperatively demand a single uniform rule operating throughout the country and those which serve a compelling state objective or legitimate local interest (in absence of Congressional action)

• Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856):
  • Wheeling Bridge ruled impediment to commerce on Ohio River

• 10 Stat. 112, Sec. 6. - Act of Congress (1856)
  • Wheeling Bridge pronounced to be a lawful structure

• Id., 282. In Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 33 (1867)
  • Congressional inaction to govern inter-State commerce is equivalent to a declaration that inter-State commerce shall be free and untrammelled

• Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869):
  • insurance transactions carried on across state lines not commerce

• WELTON v. STATE OF MISSOURI, 91 U.S. 275 (1875)
  • foundation for stare decisis of Court's self-assumed authority according to exclusive grant of power to Congress to police State regulatory and taxing decisions
  • renunciation of this policing power by the Court and remission to Congress for relief sought by litigants has never been done

• Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883)
  • In view of Congress action regarding the Wheeler Bridge decision, the court ruled that Congress, and not the Judicial Department, has the power to regulate commerce

• Kidd v. Pearson, 128 U.S. 1 (1888):
  • manufacturing, even products destined for interstate commerce, is not commerce

• Bowman v. Chicago & Northwestern Railway Co., 875 (1888)
  • Dormant Commerce Clause - State prohibition of intoxicants
  • States lack the power, even as part and parcel of a program of statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister State (in absence of Congressional action)

• Leisy v. Hardin, 135 U.S. 100 (1890)
  • Dormant Commerce Clause - State prohibition of intoxicants
  • States have no power to prevent the sale in the original package of liquors introduced from another State

• 26 Stat. 313 (1890) - Wilson Act
  • liquors transported into any state shall, upon arrival in such state, be subject to the operation of the laws of such state to the same extent as though they had been produced in such state

• U.S. v. E.C. Knight Co. (the "sugar trust case," 1895):
  • to fall under the commerce power, the regulated activity must have a "direct effect" on interstate commerce.

• Rhodes v. Iowa, 170 U.S. 412 (1898)
  • intoxicants from sister States are not subject to local authority according to Wilson Act until their arrival in the hands of the person to whom consigned

• Swift & Co. v. United States, 196 U.S. 375 (1905)
  • goods sent for sale from one state, with the expectation that they will end their transit, after purchase, in another, with only the interruption necessary at a place to find a purchaser, as a typical constantly recurring course, the current of goods existing is a current of commerce among the states, and the purchase transaction is a part and incident of such commerce and can be regulated as such
  • rationale: "It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824). And see id., 195-196

• 37 Stat. 699 (1913) - Webb-Kenyon Act
  • intoxicants entering a State from another State are under the control of the former for all purposes whatsoever

• U S v. FERGER , 250 U.S. 199 (1919):
  • fictitious shipments with false bill of lading is commerce
  • the power of Congress is not to be tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it
  • if such proposition were not sustained it would destroy the power of Congress to regulate, as obviously that power, if it is to exist, must include the authority to deal with obstructions to interstate commerce . . . and with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, even so they are not interstate commerce in and of themselves.

• Blumenstock Bros. v. Curtis Publishing Co., 252 U.S. 436 (1920):
  • making of contracts for the insertion of advertisements in periodicals in another State was not commerce

• Federal Baseball League v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922):
  • exhibitions of baseball between professional teams that travel from State to State were not in commerce
  • When called on to reconsider its decision, the Court declined, noting that Congress had not seen fit to bring the business under the antitrust laws by legislation having prospective effect and that the business had developed under the understanding that it was not subject to these laws, a reversal of which would have retroactive effect

• Stafford v. Wallace, 258 U.S. 495 (1922)
  • Chicago Live Stock Exchange and the National Live Stock Exchange buying/selling live stock at Union Stockyards of Chicago is antecedent to or subsequent to a move across state lines, and conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power
  • rationale: the term "commerce" as a unit (see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824). And see id., 195-196

• Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923)
  • trading grain futures is commerce
  • rationale: the term "commerce" as a unit (see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824). And see id., 195-196

• Oliver Iron Co. v. Lord, 262 U.S. 172 (1923):
  • mining, if not actually a part of interstate commerce, is not closely connected therewith that if taxed by the State would burden or interfere with such commerce

• Schechter Poultry Corp. v. U.S. (the "sick chicken case," 1935):
  • If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. Indeed, on such a theory, even the development of the state's commercial facilities would be subject to federal control

• Carter v. Carter Coal Co., 298 U.S. 238 Nos. 636, 651, 649, 650 (1936):
  • commodities produced or manufactured within a state intended to be sold or transported outside the state is not commerce
  • production of oil is essentially a mining operation, and therefore is not a part of interstate commerce, even though it is intended to be and is immediately shipped in such commerce.'
  • The employment of men, the fixing of their wages, hours of labor, and working conditions, the bargaining in respect of these things- whether carried on separately or collectively-each and all constitute intercourse for the purposes of production, not of trade.
  • federal regulatory power ceases when interstate commercial intercourse ends; and, correlatively, the power does not attach until interstate commercial intercourse begins.
  • constitutionality of Bituminous Coal Conservation Act 1935 will be considered (concerning and regarding its merits with respect to the General Welfare clause)

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)
  • manufacturing is antecedent to or subsequent to a move across state lines, and conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power
  • "It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824). And see id., 195-196 (rationale for)

• Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940)
  • mining is antecedent to or subsequent to a move across state lines, and conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power
  • "by the term as a unit." Gibbons v. Ogden (Ibid)

• American Medical Association v. United States, 317 U.S. 519 (1943)
  • Group Health Association activities serving only its own members is "trade" and capable of becoming interstate commerce

• United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944)
  • insurance transactions carried on across state lines is commerce

• Associated Press v. United States, 326 U.S. 1 (1945)
  • gathering of news by a press association and their transmissions to client newspapers are interstate commerce

• United States v. International Boxing Club, 348 U.S. 236 (1955):
  • businesses, conducted on a multistate basis but built around local exhibitions, are in commerce and subject to, inter alia, the antitrust laws

• United States v. Shubert, 348 U.S. 222 (1955):
  • legitimate theatrical productions are in commerce and subject to, inter alia, the antitrust laws

• Radovich v. National Football League, 352 U.S. 445 (1957)
  • businesses, conducted on a multistate basis but built around local exhibitions, are in commerce and subject to, inter alia, the antitrust laws

• Flood v. Kuhn, 407 U.S. 258 (1972):
  • professional baseball player "traded" to another club without his previous knowledge or consent, brought this antitrust suit after being refused the right to make his own contract with another major league team, which is not permitted under the reserve system
  • the Court recognized these decisions as aberrations, but it thought the doctrine entitled to the benefits of stare decisis inasmuch as Congress was free to change it at any time.

The Commerce Clause is the direct source of the most important powers that the Federal Government exercises in peacetime, and, except for the due process and equal protection clauses of the Fourteenth Amendment, it is the most important limitation imposed by the Constitution on the exercise of state power. The latter, restrictive operation of the clause was long the more important one from the point of view of the constitutional lawyer. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation. In general, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than being excercise as a source of national power. Consequencely, this historical progression resulted in the word "commerce" being predominent, while the word "regulate" remained in the background. However, the so-called ''constitutional revolution'' of the 1930s, brought the latter word to its present prominence.

Prior to reconsideration of the federal commerce power in the 1930s, the Court in effect followed a doctrine of ''dual federalism,'' under which Congress' power to regulate much activity depended on whether it had a ''direct'' rather than an ''indirect'' effect on interstate commerce. When the restrictive interpretation was swept away during and after the New Deal, the question of federalism limits respecting congressional regulation of private activities became moot. However, the States did in a number of instances engage in commercial activities that would be regulated by federal legislation if the enterprise were privately owned; the Court easily sustained application of federal law to these state proprietary activities, e.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor, 353 U.S. 553 (1957). However, as Congress began to extend regulation to state governmental activities, the judicial response was inconsistent and wavering. For example, federal regulation of the wages and hours of certain state and local governmental employees has alternatively been upheld and invalidated. See Maryland v. Wirtz, 392 U.S. 183 (1968), overruled in National League of Cities v. Usery, 426 U.S. 833 (1976), overruled in Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528 (1985).

While the Court may shift again to constrain federal power on federalism grounds, at the present time the rule is that Congress lacks authority under the commerce clause to regulate the States as States in some circumstances, when the federal statutory provisions reach only the States and do not bring the States under laws of general applicability (New York v. United States, 112 S.Ct. 2408 (1992), the supremacy clause and the Tenth Amendment).

[Ken H]

What New Deal Commerce Clause are you talking about? It looks like the interpretation of the Commerce Clause during and after the New Deal fell to Justice John Marshall's interpretation respecting commerce (as rendered in Gibbons v Ogden in 1824).

From Gibbons:

The object of inspection laws, is to improve the quality of articles produced by the labour of a country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves.

Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.

No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation .

_______________________________

Simple question: Do you think Wickard and its progeny are consistent with Marshall's opinion in Gibbons?

[Ken H]

WILLSON v. BLACK-BIRD CREEK MARSH CO., 27 U.S. 245 (1829):

origination of Dormant Commerce Clause; state regulation not repugnant to Congressional power of regulation of commerce (absent Congressional action)

The Blackbird Creek Marsh dam was authorized as a local health and property value measure by the State of Delaware. Now, because Blackbird Creek was a navigable creek connected to coastal waters, opponents argued that the dam was an unconstitutional blockage of interstate commerce.

Marshall rejected this because Congress had passed no legislation to affect that question,-- ie, the Commerce Clause was in its dormant state. He also said that if Congress had indeed passed such legislation, then he would have had no problem declaring the dam unconstitutional.

Delaware was legitimately exercising its retained power (health, local property regulation-- see Gibbons). And because Congress was dormant, the Court held the law was not repugnant to the Constitution

Do you agree with my summary? If so, where does Willson provide stare decisis to Wickard?

[tacticalogic]

Thomas Jefferson to Albert Gallatin

13 Oct. 1802

Works 9:398--99

You know my doubts, or rather convictions, about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expense, & to the greatest abuses. There is, however, one intention of which the act is susceptible, & which will bring it within the Constitution; and we ought always to presume that the real intention which is alone consistent with the Constitution. Altho' the power to regulate commerce does not give a power to build piers, wharves, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go if it went to the first, yet a power to provide and maintain a navy, is a power to provide receptacles for it, and places to cover & preserve it. In choosing the places where this money should be laid out, I should be much disposed, as far as contracts will permit, to confine it to such place or places as the ships of war may lie at, and be protected from ice; & I should be for stating this in a message to Congress, in order to prevent the effect of the present example. This act has been built on the exercise of the power of building light houses, as a regulation of commerce. But I well remember the opposition, on this very ground, to the first act for building a light house. The utility of the thing has sanctioned the infraction. But if on that infraction we build a 2d, on that 2d a 3d, &c., any one of the powers in the Constitution may be made to comprehend every power of government.

What you have chronicled is precisely the process of piling error upon error that Jefferson warned about. Compare the writings of the founders WRT regulating commerce among the several states with the current doctrine. If the application of precedent is true, they should be in agreement. As it stands they appear to be irreconcilably different.