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					          Today‟s Lecture:




    Introduction to the Commerce
                Clause




Session                      Topic(s)


 15
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Lecture Organization

 Last Time              This Time

McCullough v.           The Problems
 Maryland               of Federalism
Introduction to         The Commerce
  Federalism                Clause

                       Gibbons v. Ogden
              Intro to Part II of the course


Power of the Federal Government
-- We started this already last time …




11/4/2010                Copyright, Sean Wilson. 2007   4
  Article I:

               The Congress



Article II:


                President


Article III:

                 Judiciary
“Laundry List”
     -- Two sovereigns sharing power (states and feds)
     -- What they share is supposed to be determined by what
     we can think of as a “partnership agreement”
     -- “I do my chores; you do yours”
     -- This is encapsulated in Section 8 of Article I
     -- “laundry list”

            make sure you memorize this list


11/4/2010                   Copyright, Sean Wilson. 2007       6
                                            “The Laundry List”



                                  • Punish Securities fraud/forged currency
• Tax & Spend for the general
                                  • Regulate commerce with nations &
welfare.                          among states**
• Borrow Money (deficits)         • Suppress insurrection w/federal forces
• Bankruptcy and Immigration      • Exclusive governance of the capital
• Coin Money                      and forts**
• Weights and Measures            • Can‟t prohibit the slave trade until
• Post Offices and Roads          1808.
• Patents                         • Can‟t suspend habeas corpus unless
• Inferior courts                 insurrection
• Punish certain crimes**         • No bill of attainder/ex post facto laws
• Declare War                     ---------------------------------------------
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
                                                        10th Amendment




    “The powers not delegated to the United States by the
    Constitution, nor prohibited by it to the States, are reserved to
    the States respectively, or to the people.”




11/4/2010                Copyright, Sean Wilson. 2007                    8
               McCullough v. Maryland (1819)


Necessary & Proper Clause

                                   REASONABLE J.M.
To make all Laws which shall be necessary and proper for
carrying into Execution the forgoing Powers, and all other
Powers vested by this Constitution …

            “Necessary & Proper” is a term of art
            (think of it as being within quotes)
                    Introduction to Part II


Warning

      Tougher material

      -- grades generally dip a little for part II
      -- if you don’t labor through these boring commerce cases,
      you may find grades unpleasant




11/4/2010                    Copyright, Sean Wilson. 2007     10
                   Introduction to Part II


Warning

      Somewhat like law school

      -- This part of the course will resemble law school to some
      extent
      -- commerce-clause cases are not sexy; they are dull and
      tedious
      -- for those of you who can’t stand reading these things and
      picking out the rule of law, you shouldn’t go to law school
      (for those who don’t read the cases at all, we have enough
      bad lawyers in society already. So try journalism.)
11/4/2010                  Copyright, Sean Wilson. 2007        11
                     The Basic Problem


Limited Government
-- The basic problem is that the 1787 Constitution does not
appear to allow Congress to do very much that it would want to
do in the modern era of governance
-- for example …




11/4/2010               Copyright, Sean Wilson. 2007       12
                                                     Crimes Clause




  Congress has the power to …
  To provide for the Punishment of counterfeiting the
  Securities and current Coin of the United States;
  To define and punish Piracies and Felonies committed on the
  high Seas, and Offences against the Law of Nations;

                                             Question:
                                     Is Congress allowed
                                    to wage a drug war?

11/4/2010             Copyright, Sean Wilson. 2007              13
                                                 Crimes Clause




  Congress has the power to …
  To provide for the Punishment of counterfeiting the
  Securities and current Coin of the United States;
  To define and punish Piracies and Felonies committed on the
  high Seas, and Offences against the Law of Nations;

                               Question:
             Is Congress allowed to criminalize anything
                 other than counterfeiting, piracy and
            international-law violations? If not, how come
11/4/2010
                         FBI and Wilson. 2007
            we have anCopyright, Seana massive federal police   14
                              state today?
              Question:                    “The Laundry List”
        Can Congress try to
        fix global warming?

• Tax & Spend for the general     • Punish Securities fraud/forged currency
welfare.                          • Regulate commerce with nations &
• Borrow Money (deficits)         among states**
• Bankruptcy and Immigration      • Suppress insurrection w/federal forces
• Coin Money                        Exclusive governance of the capital
                                  • Exclusive governance of the capital
• Weights and Measures            and forts**
• Post Offices and Roads          • Can‟t prohibit the slave trade until
• Patents                         1808.
• Inferior courts                 • Can‟t suspend habeas corpus unless
• Punish certain crimes**         insurrection
• Declare War                     • No bill of attainder/ex post facto laws
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
             Question:                     “The Laundry List”
      Could Congress pass a
     law that mandated clean
          air, water, etc.?
• Tax & Spend for the general     • Punish Securities fraud/forged currency
welfare.                          • Regulate commerce with nations &
• Borrow Money (deficits)         among states**
• Bankruptcy and Immigration      • Suppress insurrection w/federal forces
• Coin Money                        Exclusive governance of the capital
                                  • Exclusive governance of the capital
• Weights and Measures            and forts**
• Post Offices and Roads          • Can‟t prohibit the slave trade until
• Patents                         1808.
• Inferior courts                 • Can‟t suspend habeas corpus unless
• Punish certain crimes**         insurrection
• Declare War                     • No bill of attainder/ex post facto laws
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
             Question:                     “The Laundry List”
      Can Congress Ban Gay
           Marriage?

• Tax & Spend for the general     • Punish Securities fraud/forged currency
welfare.                          • Regulate commerce with nations &
• Borrow Money (deficits)         among states**
• Bankruptcy and Immigration      • Suppress insurrection w/federal forces
• Coin Money                        Exclusive governance of the capital
                                  • Exclusive governance of the capital
• Weights and Measures            and forts**
• Post Offices and Roads          • Can‟t prohibit the slave trade until
• Patents                         1808.
• Inferior courts                 • Can‟t suspend habeas corpus unless
• Punish certain crimes**         insurrection
• Declare War                     • No bill of attainder/ex post facto laws
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
             Question:                     “The Laundry List”
      Can it make people buy
        health insurance?

• Tax & Spend for the general     • Punish Securities fraud/forged currency
welfare.                          • Regulate commerce with nations &
• Borrow Money (deficits)         among states**
• Bankruptcy and Immigration      • Suppress insurrection w/federal forces
• Coin Money                        Exclusive governance of the capital
                                  • Exclusive governance of the capital
• Weights and Measures            and forts**
• Post Offices and Roads          • Can‟t prohibit the slave trade until
• Patents                         1808.
• Inferior courts                 • Can‟t suspend habeas corpus unless
• Punish certain crimes**         insurrection
• Declare War                     • No bill of attainder/ex post facto laws
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
             Question:                     “The Laundry List”
        Can it wage war on
             poverty?

• Tax & Spend for the general     • Punish Securities fraud/forged currency
welfare.                          • Regulate commerce with nations &
• Borrow Money (deficits)         among states**
• Bankruptcy and Immigration      • Suppress insurrection w/federal forces
• Coin Money                        Exclusive governance of the capital
                                  • Exclusive governance of the capital
• Weights and Measures            and forts**
• Post Offices and Roads          • Can‟t prohibit the slave trade until
• Patents                         1808.
• Inferior courts                 • Can‟t suspend habeas corpus unless
• Punish certain crimes**         insurrection
• Declare War                     • No bill of attainder/ex post facto laws
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
                  Note:                    “The Laundry List”
    None of this is a problem for
    the capital and the forts (and
       I think, federal territory)
• Tax & Spend for the general     • Punish Securities fraud/forged currency
welfare.                          • Regulate commerce with nations &
• Borrow Money (deficits)         among states**
• Bankruptcy and Immigration      • Suppress insurrection w/federal forces
• Coin Money                        Exclusive governance the capital
                                  • Exclusive governance ofof the capital
• Weights and Measures            and forts**
                                  and forts**
• Post Offices and Roads          • Can‟t prohibit the slave trade until
• Patents                         1808.
• Inferior courts                 • Can‟t suspend habeas corpus unless
• Punish certain crimes**         insurrection
• Declare War                     • No bill of attainder/ex post facto laws
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
                    Intro to Commerce Clause


Extremely Important
-- Commerce clause has become the most important clause in
the Constitution (as I will show you)
-- let’s break it down ...




11/4/2010                    Copyright, Sean Wilson. 2007   21
                                            “The Laundry List”

      Key Provision of the Constitution:

                                  • Punish Securities fraud/forged currency
• Tax & Spend for the general
                                  • Regulate commerce with nations &
welfare.                          among states**
• Borrow Money (deficits)         • Suppress insurrection w/federal forces
• Bankruptcy and Immigration      • Exclusive governance of the capital
• Coin Money                      and forts**
• Weights and Measures            • Can‟t prohibit the slave trade until
• Post Offices and Roads          1808.
• Patents                         • Can‟t suspend habeas corpus unless
• Inferior courts                 insurrection
• Punish certain crimes**         • No bill of attainder/ex post facto laws
• Declare War                     ---------------------------------------------
• Raise & regulate the military   • Enforce the 14th A. (Due Process,
• the proper way to tax           Equal Protection)
• No titles of nobility           • Enforce the 13th A. (No slavery)
                                                      Commerce Clause



  Congress has the power to …
  “Congress shall have the Power to regulate Commerce with
                                             Commerce with
                                 to regulate Commerce with
                       among the several States, and with the
  foreign Nations, and among the several States, and with the
  Indian Tribes”

                 Three basic ideas:
                 -- It must be “commerce”
                 -- It must be “interstate”
                 -- and THAT must be the objective?

11/4/2010              Copyright, Sean Wilson. 2007                23
         Gibbons v. Ogden


Facts:




                             Question:
                        What are the facts of
                            this case?
                 Gibbons v. Ogden


Facts:
Technology

  -- Water (rivers, lakes, seas) was equivalent to the
  highways
  -- Common method of travel: horseback and carriage.
  -- sailboats traveling on waterways would be equivalent
  today to flying.
  -- A new invention: the steam boat!!
  -- works better than sails; can charge people for the ferries,
  etc
                 Gibbons v. Ogden


Facts:
State Monopoly

  -- New York grants to Fulton and Livingston the exclusive
  right to Ferry people between New York and waterways.
  -- Fulton and Livingston then give a license to an operator,
  Aaron Ogden, a former U.S. Senator and governor of New
  Jersey
  -- What the neighborhood looked like [depiction]
                 Gibbons v. Ogden


Facts:
State Monopoly

  -- New York grants to Fulton and Livingston the exclusive
  right to Ferry people between New York and waterways.
  -- Fulton and Livingston then give a license to an operator,
  Aaron Ogden, a former U.S. Senator and governor of New
  Jersey
  -- What the neighborhood looked like [depiction]
                    Gibbons v. Ogden


Facts:
The Federal Law

  -- In 1793, Congress passed a law to regulate coastal
  waters.
  -- Pursuant to that law, Thomas Gibbons was given a
  federal license to give steam-boat rides
         (Note: the license is not a monopoly; it works like a
         drivers license)
  -- Hence, Ogden now has some serious competition
  (see funny cartoon)
    Question:
Who should win this
 case and why?
      Question:
 Is steam boat traffic
going to and from the
       river side
     “commerce?”
                                 Question:
                         Is the granting of a federal
                              license “regulating
                                  commerce?”

                                             Question:
                                     If so, does that settle the
                                               issue?
                        Possible Views

Narrow Viewpoint #1:       Read “commerce” narrowly

 “Commerce” refers only to actual items for sale
 that are being shipped across the river

                                       Regulate

                    Goods




11/4/2010                 Copyright, Sean Wilson. 2007   31
                        Possible Views

Narrow Viewpoint #1:       Read “commerce” narrowly

 “Commerce” refers only to actual items for sale
 that are being shipped across the river

                                 Could NOT Regulate

                    People

                                                         Answer:
                                                        Answer:
                                                       Question:
                                         The be like getting paid.
                          That would driver issaying an airplane
                                      That’s what be wrong with
                                       What traveled across state
                          or a taxi thatmighthe is selling -- a line
                                                       this view?
                                                        boat ride.
                          with only people could not be, itself, a
11/4/2010
                                             commercial activity.
                          Copyright, Sean Wilson. 2007             32
                       Possible Views

Narrow Viewpoint #2:       Read “regulation” narrowly

 “regulation” means price, supply, demand, terms of
 trade, etc., -- it doesn’t mean deciding who gives
 out licenses to give steam boat rides

                                               Problem:
                       The regulation of how many boat
                     captains exist would, in fact, regulate
                      price, supply, etc., of the navigation
                                    business


11/4/2010                 Copyright, Sean Wilson. 2007         33
                                   Answer:
      Question:
                          If every port city required
    What is the basic
problem with New York‟s   a local operator, how can
                          you send goods from one
law from the standpoint
                               place to another?
 of good public policy?
                                        Question:
       Question:
                            If the constitution did not contain
 Is asking these kinds of
questions more important    a commerce clause, would it still
                                be “unconstitutional?” How
     than asking what
                                would you vote if no clause
constitutional words say?
                                          existed?
Q-Past




         0
         0
               Gibbons v. Ogden


The decision




                                      Question:
                                  How does Marshall
                                   rule, and why?
                 Gibbons v. Ogden


The decision
Feds win

  -- Ogden originally won an injunction in state courts
  -- Gibbons appealed
  -- Marshall rules in favor of Gibbons (federal government)
  -- Let’s examine his logic …
             Hercules Strikes Again



How to read a constitution

    Question:
     Do we read the commerce clause with a strict or
    liberal construction?
    His Answer:
    we do neither. We give words the ordinary
    meaning.
             Hercules Strikes Again



Syllogistic Reasoning

    1. “commerce” means “intercourse”
        • a broad activity. The ferrying industry clearly counts.
        • today‟s parlance: commerce = “the economy”

    2. regulation means “to govern”
        • idea: it‟s not just terms of trade, it is whether to trade
        at all; what the industry that trades will look like, etc.


    3. Therefore, Congress GOVERNS all economic
    intercourse between the states.
                  Gibbons v. Ogden


Two critical points
 What is interstate commerce?




                                      Question:
                           For Gryffindore points, what does
                       Marshall‟s opinion say is NOT interstate
                       commerce. That is, given that commerce
                      is a broad activity, what sorts of economic
                            activity would not be included?
                  Gibbons v. Ogden


Two critical points
 What is interstate commerce?

   -- The facts of the case concern commercial ferry boat
   industry.
   -- However, Marshall does not stop there.
   -- He says that commerce need not be traveling across a
   state line in order to be included.
      Marshall „s Commerce Clause
                    If it remains
        Gets to GOVERN continuing its venture inside
        everything about this thing! it
                    completely local,
                             one state
                    is not federal
                    business

            crossing a border
Local Activity Cannot Be Touched --           “Uncle Sam”
                     An “intercourse”           No matter where it
                                                goes, it (e.g., state
Does not extend to activities completely internal or local is federal
                     (a broad concept)
inspection laws). State inspection laws, healthbusiness laws for
                                                  laws, and
                  “Interstate Commerce” and those which respect
regulating the internal commerce of a State,
turnpike roads, ferries, &c. are not within the power granted to
Congress.




11/4/2010                Copyright, Sean Wilson. 2007             43
Time                  Gibbons v. Ogden


 Two critical points
  Exclusivity Premise

       -- The second point that needs to be made about the
       decision is something that I refer to as the “exclusivity
       premise”
       -- It says this: so long as something can be regulated by
       Congress, it cannot be regulated by the states
       -- The power to regulate interstate commerce is therefore
         (relate exclusive.
       mutually this to Marshall’s way of deciding cases.
         Using the syllogism, either/or logic. If the power is
         here, Hercules says, it can’t be there, too.)

				
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