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									        Commerce Power Notes 3/12/09
Missouri v. Holland
252 U.S. 416 (Argued March 2, 1920; April 19, 1920)

   FACTS: On Writ of Appeal, State of Missouri sought review of a decision of the
    United States District Court of for Western District of Missouri dismissing appellant's
    constitutional challenge to the migratory bird treaty; claimed it was an
    unconstitutional interference with appellant's sovereign rights under 10th
    Amendment. District court dismissed action. Supreme Court affirmed, holding that
    in pursuance of a valid treaty, the government could act under authority of U.S.
    Const. Art. VI to regulate the killing of migratory birds.

   COUNSEL: Mr. J. G. L. Harvey and Mr. John T. Gose, Assistant Attorney General of
    State of Missouri, with whom Mr. Frank W. McAllister, Attorney General of the State
    of Missouri, was on brief, for appellant, State of Missouri. Solicitor General of US and
    Mr. Assistant Attorney General Frierson for appellee, United States (for Ray Holland,
    federal game warden). Mr. Louis Marshall, by leave of court, filed brief as amicus
    curiae, in behalf of Association for the Protection of the Adirondacks. Mr. Richard J.
    Hopkins, Attorney General of Kansas, and Mr. Samuel W. Moore, by leave of court,
    filed a brief as amici curiae, in behalf of State of Kansas.

   OUTCOME/VOTES: Lower court affirmed, on 7-2 vote. (White, McKenna, Holmes,
    Day, McReynolds, Brandeis, Clarke in majority.) Opinion for the Court by Justice
    Holmes. Van Devanter and Pitney dissented without opinion. Van Devanter a big
    duck hunter. So, too, was McReynolds.

   STATUTE TRIGGERING THE CASE: Treaty of August 16, 1916, 39 Stat. 1702, with
    Great Britain. Migratory Bird Treaty Act of July 3, 1918, c. 128, 40 Stat. 755, and
    regulations made by Secretary of Agriculture in pursuance of statute. State of
    Missouri‘s statutes and regulations on migratory birds and hunting.

   CONSTITUTIONAL BASES: Treaty-making power conferred by Art. II, § 2;
    Art. I, § 8, ―necessary and proper‖ clause; sovereign powers reserved to States by
    Tenth Amendment.
   Article VI, Clause 2: ―This Constitution, and the Laws of the United States which
    shall be made in Pursuance thereof; and all Treaties made, or which shall be
    made, under the authority of the United States, shall be the supreme Law of the
    land; and the Judges in every State shall be bound thereby, any Thing in the
    Constitution or Laws of any State to the Contrary notwithstanding.‖

Article IV, Section 3
 ‖The Congress shall have Power to dispose of and make all needful Rules and
  Regulations respecting the Territory or other Property belonging to the United

    States; and nothing in this Constitution shall be so construed as to Prejudice any
    Claims of the United States, or of any particular State.‖

   Protection of its quasi sovereign right to regulate taking of game is sufficient
    jurisdictional basis, apart from any pecuniary interest, for bill by State to enjoin
    enforcement of federal regulations over subject alleged to be unconstitutional.
   The Treaty of August 16, 1916, with Great Britain, providing for protection, by
    closed seasons and in other ways, of migratory birds in United States and Canada,
    and binding each power to take and propose to their law-making bodies
   measures for carrying it out, is within treaty-making power conferred by Art. II, §
    2, of the Constitution; the Act of July 3, 1918, which prohibits killing, capturing or
    selling any of migratory birds included in treaty, except as permitted by
    regulations compatible with those terms made by Secretary of Agriculture, is
    valid under Art. I, § 8, of the Constitution, as necessary and proper means of
    effectuating treaty.
   Treaty and statute, by bringing such birds within the paramount protection and
    regulation of Government do not infringe property rights or sovereign powers
    over such birds reserved to States by Tenth Amendment.
   Vis-à-vis rights reserved to States, treaty-making power is not limited to what
    may be done by an unaided act of Congress.
   Acts of Congress are supreme law of land if made in pursuance of the
    Constitution; treaties are supreme law of land if made under the authority of the
    United States

   IMPLICATION: United States may accomplish through its treaty-making
    power, together with statutes following a treaty, what it might not be able to
    accomplish with a statute alone consistently with Constitution. Thus, even if
    Congress had gone beyond its commerce powers in derogation of the 10th
    Amendment, the treaty superseded. Lower federal courts had struck down
    previous version of same statute passed in 1913. During this period, Congress‘s
    commerce powers were at times treated less expansively by the Court than
    during the post-1937 period.

   IMPLICATION: Missouri v. Holland, of course, applies to conflicts between
    treaties and the 10th Amendment. In Reid v. Covert (1957), Court held that US
    civilian dependents of military personnel must be accorded a trial that meets
    standards of Constitution. Justice Black:
    ―No agreement with a foreign nation can confer power on Congress, or on any
    other branch of government, which is free from the restraints of the Constitution.‖
   See debate over Bricker Amendment in 1950s.

   Treatment of Previous Statute: Migratory Bird Act of 1913, Act of 3 March 1913,
    a measured as amendment to Department of Agriculture Appropriations Act.
    Doubt about constitutional validity. DoA showed little enthusiasm to enforce, to
    test constitutionality. Defenders of birds called for bird protection treaty. Treaty
    with UK approved in 1916. Migratory Bird Treaty Act passed Senate on voice
    vote in 1917 and House in June 1918, 236-49. The 1913 Act was upheld by one
    trial court, in 1914, US v. Shaw (DSD). Then, ruled against in US v. Shauver
    (EDArk), US v. McCullagh (DKan), State v. Sawyer, 113 Maine 458 (1915), and State
    v. McCullagh, 96 Kansas 786 (1915).
   In five years of operation of 1913 statute, DoA game wardens reported 1132
    violations, but prosecutions in all but 29 had been held up pending the Supreme
    Court‘s disposition of US v. Shauver. Government sought writ of error; Court
    heard oral arguments in 1915 and assigned for reargument in 1916 Term. US
    moved to postpone and then to dismiss, which Court did in January 1919.

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000)
   FACTS: In 1996, Massachusetts passed law barring state entities from buying
    goods or services from companies doing business with Burma. Later, Congress
    imposed mandatory and conditional sanctions on Burma. Respondent (Council),
    had several members affected by state Act, filed suit against petnr state officials
    (Crosby et al.) in USDC, claiming state Act unconstitutionally infringed on federal
    foreign affairs power, violated Foreign Commerce Clause, and was preempted by
    federal Act. USDC permanently enjoined the state Act‘s enforcement, and USCA
    for the First Circuit affirmed.

   STATUTES AT ISSUE: Massachusetts‘ law barring state entities from buying
    goods or services from companies doing business with Burma,― An Act
    Regulating State Contracts with Companies Doing Business with or in Burma
    (Myanmar),‖ 1996 Mass. Acts 239, ch. 130. Late in 1996, Congress enacted statute
    imposing mandatory and conditional sanctions on Burma. Foreign Operations,
    Export Financing, and Related Programs Appropriations Act, 1997.

   CONSTITUTIONAL PROVISIONS: Art I, Sec 8, Cl 3: ―The Congress shall have
    power . . . To regulate commerce with foreign nations, and among the several states,
    and with the Indian tribes; …
   Art VI ,Cl 2: ―This Constitution, and the Laws of the United States which shall be
    made in Pursuance thereof; and all Treaties made, or which shall be made, under the
    authority of the United States, shall be the supreme Law of the land; and the Judges
    in every State shall be bound thereby, any Thing in the Constitution or Laws of any
    State to the Contrary notwithstanding.“

   VOTE/OUTCOME (9-0): Souter, J., delivered opinion of Court, in which
    Rehnquist, C. J., and Stevens, O‘Connor, Kennedy, Ginsburg, and Breyer joined.
    Scalia filed an opinion concurring in judgment, in which Thomas joined.

   HOLDING: Supreme Court held Massachusett‘s Act preempted, and its
    application unconstitutional, under Supremacy Clause.

   (1) Even without express preemption provision, state law yield to congressional
    Act if Congress intends to occupy field or to extent of any conflict with US statute.
    SCT will find preemption where is impossible for private party to comply with
    both state and US law and where state law is obstacle to accomplishment and
    execution of Congress‘s full objectives. ―Sufficient obstacle‖ determined by
    examining US statute and identifying purpose and intended effects. Here, state
    Act is such obstacle; undermines intended purpose and natural effect of at least
    three US Act provisions.

   (1a) State Act obstacle to US Act‘s delegation of discretion to Pres to control economic
    sanctions v Burma
   (1b) State Act interferes with Congress‘s intention to limit economic pressure against
    Burmese Govt to specific range. State Act stands clear contrast to US Act. Prohibits
    some contracts permitted by US Act, affects more investment than US Act, and
    reaches foreign and domestic companies while US Act confines reach to US persons.
    Conflicts with US law by penalizing individuals and conduct Congress has explicitly
    exempted or excluded from sanctions.
    (1c) State Act at odds with Pres‘s authority to speak for US among world‘s
    nations to develop comprehensive, multilateral Burma strategy. Congress called
    for Pres to develop such strategy, directed him to encourage dialogue between
    Burmese Govt and democratic opposition, and required him to report to
    Congress on efforts. This delegation of power, like that over economic sanctions,
    gave Pres the maximum authority of National Government. State Act
    undermines Prest‘s capacity for effective diplomacy.
    (2) Existence of conflict cognizable under Supremacy Clause does not depend on
    express congressional recognition that federal and state law may conflict. Failure
    to provide for preemption expressly may reflect nothing more than settled
    character of implied preemption that courts will dependably apply.

   DIFFERENT VIEWS: Justice Scalia, with Justice Thomas: Agree on outcome,
    preemption of Massachusetts‘ statute; but he sharply disagrees with language of
    opinion in which Justice Souter invokes legislative history and evidences of
    ―legislative intent‖ other than the language of statutes.

   Justice Scalia: ―In any case, the portion of the Court‘s opinion that I consider
    irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion‘s
    size and (since it is in footnote type) even more of the opinion‘s content. I consider
    that to be not just wasteful …. but harmful, since it tells future litigants that, even
    when a statute is clear on its face, and its effects clear upon the record, statements
    from the legislative history may help (and
   Justice Scalia (continued): ―presumably harm) the case. If so, they must be
    researched and discussed by counsel–which makes appellate litigation
    considerably more time consuming, and hence considerably more expensive, than
    it need be. This to my mind outweighs the arguable good that may come of such
    persistent irrelevancy, at least when it is indulged in the margins: that it may
    encourage readers to ignore our footnotes.‖

Pennsylvania v. Nelson
350 U.S. 497 (November 15-16, 1955,Argued, April 2, 1956, Decided)
   FACTS: Perennial question of federal preemption doctrine. Certiorari to
    Supreme Court of Pennsylvania, WD. Question was whether US Smith Act (18
    USC 2385), which prohibits knowing advocacy of overthrow of government of
    US by force and violence, supersedes enforceability of Pennsylvania Sedition
    Act, which proscribes same conduct and under which Nelson, a member of
    Communist Party, had been convicted in Pennsylvania state courts.

   FACTS: CJ Warren for Court answered yes, on grounds that Congress has
    occupied field to exclusion of parallel state legislation, that dominant interest of
    federal government precludes state intervention, and that administration of state
    acts would conflict with operation of federal plan.

   CONSTITUTIONAL ISSUE: Reach of the Interstate Commerce Clause and
    federal power versus reach of state governments. Federal preemption in areas of
    federal interest.

   STATUTES IN QUESTION: Federal Smith Act and Pennsylvania Sedition,
    which cover same ground.

   VOTES/OUTCOME: Affirmed. 6-3. CJ Warren for Black, Frankfurter, Douglas,
    Clark, Harlan. Dissenting, Reed, for Burton and Minton.

Smith Act, 18 USC 2385
   ―Whoever knowingly or willfully advocates, abets, advises, or teaches the duty,
    necessity, desirability, or propriety of overthrowing or destroying the government
    of the United States or the government of any State, Territory, District or
    Possession thereof, or the government of any political subdivision therein, by
    force or violence, or by the assassination of any officer of any such government; or

    COUNSEL: Frank F. Truscott, Special Depty AG of Pennsylvania, and Harry F.
     Stambaugh argued for State of Pennsylvania. On brief: Frank P. Lawley, Jr., Depy
     AG, and Albert A. Fiok.
   Herbert S. Thatcher argued for respondent, Steve Nelson. On the brief: Victor
   By special leave, Charles F. Barber argued for US and Louis C. Wyman, AG, for
    State of New Hampshire, as amici curiae, urging reversal. On brief with Mr. Barber:
    Solicitor General Sobeloff, Asst AG Tompkins, Harold D. Koffsky and Philip R.
    Monahan. Mr. Wyman filed brief.

   COUNSEL (continued): Briefs of amici curiae urging reversal filed by George
    Fingold, AG, and Lowell S. Nicholson, Samuel H. Cohen and Fred L. True, Jr.,
    Asst AG, for State of Massachusetts, and Ralph B. Gregg for American Legion.
   Briefs of amici curiae urging affirmance filed by Osmond K. Fraenkel and Herbert
    Monte Levy the American Civil Liberties Union, Walter C. Longstreth, Allen S.
    Olmsted, 2d and William Allen Rahill for Civil Liberties Committee of the
    Philadelphia Yearly Meeting of the Religious Society of Friends, and Frank J. Donner,
    Royal W. France, Arthur Kinoy and Marshall Perlin for Feldman et al.

   Smith Act, as amended, 18 U. S. C. § 2385, which prohibits knowing advocacy
    of the overthrow of US Government by force and violence, supersedes the
    enforceability of the Pennsylvania Sedition Act, which proscribes the same
   States may enforce their sedition laws at times when US has not occupied field
    and is not protecting entire country from seditious conduct.

   States may not act when:
   (1) Scheme of federal regulation is so pervasive as to make reasonable
    inference that Congress left no room for States to supplement it.
   (2) Federal statutes touch a field in which federal interest is so dominant that
    federal system must be assumed to preclude enforcement of state laws on the
    same subject.

   (3) Enforcement of state sedition acts presents serious danger of conflict re
    administration of federal program.

   DIFFERENT VIEW: Reed, with concurrence of Burton and Minton,
    dissented, taking view contrary to majority. Reed argued that Court
    should not void state legislation without clear mandate from Congress.
    Congress did not explicitly preempt state action in this area; and, in fact,
    it said contrary.

   IMPLICATIONS: US Government has, through Smith Act, comprehensively
    occupied the area of protecting itself against sedition and subversion and state
    laws on the subject are preempted because their administration might
    undermine federal administration. Thus, little Smith Acts, as they effect US,
    are preempted.

PG&E v. State Energy Resources Conservn and Development
Commn, 461 U.S. 190
   FACTS: Calif law provided that before nuclear power plant be built, State
    Energy Resources Conserv and Develop Commn determine on case-by-case
    basis that there will be "adequate capacity" for interim storage of plant's spent
    fuel. Sec 25524.2 imposed moratorium on certification of new nuclear plants
    until State Commn finds has been developed, and US through NRC has
    approved, demonstrated technology or means for

   FACTS: permanent disposal of high-level nuclear wastes. Electric utilities
    filed action in USDC seeking declaration provisions are invalid under
    Supremacy Clause because pre-empted by Atomic Energy Act of 1954. USDC,
    after finding issues presented by two provisions were ripe for adjudication,
    held were pre-empted by and in conflict with Atomic Energy Act. CA9 agreed
    that challenge to 25524.2 was ripe for review, but found challenge to 25524.1(b)
    was not because it could not be known whether State Commn will ever find
    nuclear plant's storage capacity to be inadequate.

   FACTS: CA9 also held that 25524.2 not designed to provide protection against
    radiation hazards but was adopted because uncertainties in nuclear fuel cycle
    make nuclear power an uneconomical and uncertain source of energy and
    section was not pre-empted because 271 and 274(k) of Atomic Energy Act
    constituted authorization for States to regulate nuclear power plants for
    purposes other than protection against radiation hazards. CA9 court further

    held that 25524.2 was not invalid as barrier to fulfillment of the federal goal of
    encouraging development of atomic energy.

   VOTING/OUTCOME (9-0): Justice White for the Court. Blackmun, with
    Stevens, concurred.

   Section 25524.2 not pre-empted by Atomic Energy Act.
   (a) From passage of Atomic Energy Act (1954), through revisions, Congress has
    preserved dual regulation of nuclear-powered electricity generation: US maintains
    complete control of safety and "nuclear" aspects of energy generation; States exercise
    traditional authority over economic questions such as need for additional generating
    capacity, type of generating facilities licensed, land use, and ratemaking. SCT accepts
    California's avowed economic rather than safety purpose as rationale for enacting
    25524.2, so statute is outside federally occupied field of nuclear safety regulation.

    (b) Section 25524.2 does not conflict with US regulation of nuclear waste
    disposal, with decision of NRC that is permissible to continue to license
    reactors, despite uncertainty surrounding waste disposal problem, or with
    Congress' recent passage of Nuclear Waste Policy Act of 1982 directed at
    problem. Because NRC's decision does not and could not compel utility to
    develop nuclear plant, compliance with that decision and 25524.2 is possible.

   Moreover, because NRC's regulations are aimed at insuring plants are safe, not
    necessarily economical, 25524.2 does not interfere with objective of regs.
    California not trying to enter field of developing and licensing nuclear waste
    disposal technology, field occupied by US, 25524.2 not pre-empted any more by
    NRC's obligations in waste disposal field than by its licensing power over plants
    themselves. Does not appear Nuclear Waste Policy Act of 1982 intended to make
    decision for States whether now sufficient US commitment to fuel storage & waste
    disposal that licensing of nuclear reactors may resume

   (c) Section 25524.2 does not frustrate Atomic Energy Act's purpose to develop
    commercial use of nuclear power. Promotion of nuclear power not to be
    accomplished "at all costs." Congress has given States authority to determine,
    as matter of economics, whether nuclear plant vis-a-vis fossil fuel plant should
    be built. California's decision to exercise that authority does not, in itself,
    constitute a basis for pre-emption

   OTHER VIEWS: Blackmun, with Stevens. Conc in part and conc in judgment.
    Disagreed with implicit idea that state motivated solely by safety concerns, rather
    than economic, lacked authority to prohibit construction of nuclear plants. Dealt
    with reasons why Court held that a safety-motivated decision to prohibit

    construction would be preempted: (1)"Federal Government has occupied entire
    field of nuclear safety"; (2) state judgment on safety would place state in conflict
    with NRC; and(3) moratorium on further plant construction would "be in teeth of
    Atomic Energy Act's objective to insure that nuclear technology be safe enough
    for widespread development and use.―

   OTHER VIEWS: Blackmun, with Stevens. Blackmun held that Congress had not
    attempted to control wide field of "nuclear safety concerns," only smaller realm of
    safe plant construction and operation. If US attempted to preempt states, given
    that its area of authority was not large enough to cover all contingencies, would
    create "regulatory vacuum." Held that while NRC had authority to determine
    whether it was safe for construction of plant to proceed, it was not in position to
    order that such construction take place. US‘s policy of encouraging nuclear
    development should not be interpreted as attempt to prevent states from
    developing alternative sources of energy.

The Commerce Clause
   Article I, Section 8.
   The Congress shall have Power . . . To regulate Commerce with
    foreign Nations, and among the several States, and with the Indian
    Tribes . . . .
   Constitutional Foundations of Commerce Power

Gibbons v. Ogden
22 U.S. 1; 9 Wheat. 1 FEBRUARY, 1824 Term
   FACTS: Appeal from Court for Trial of Impeachments and Correction of Errors of
    State of New-York. Aaron Ogden filed bill in Court of Chancery of NY, against
    Thomas Gibbons, setting forth several acts of Legislature, enacted for purpose of
    securing Robert R. Livingston and Robert Fulton exclusive navigation of all waters
    within jurisdiction of NY, with boats moved by fire or steam, for term of years which
    had not yet expired; and authorizing Chancellor to award injunction restraining any
    person from navigating those waters with boats of that description. Bill stated an
    assignment from Livingston and

   FACTS: Gibbons was a former partner turned competitor of Ogden. Ogden had
    monopoly to operate steamboats on NY Harbor from NYC to NJ, and Gibbons was
    competing with him. Ogdens' monopoly was granted by NY legislature. Gibbon's
    ferries were licensed as "vessels to be employed in the coasting trade" under a federal

    law of 1793. Trial court granted an injunction against Gibbons to stop operating his
    ferry. Gibbons brought an appeal to Supreme Court on grounds that statute granting
    monopoly to Ogden was contrary to commerce power granted to Congress.

   LEGAL ISSUE: Did Congress have power to regulate navigation of steamboats on
    New York harbor between NY and NJ, to exclusion of state of NY? NJ and NY acts
    granting privileges in conflict. Federal navigation act.

   STATUTES AT ISSUE: US Statute, 18th of February, 1793, c. 3. entitled, "An act for
    enrolling and licensing ships and vessels to be employed in the coasting trade and
    fisheries, and for regulating the same." New York legislature‘s creation of

   CONSTITUTIONAL ISSUE: Interstate Commerce clause. Definition of
    ―commerce.‖ State legislative power.

   ARGUMENTS: US and NJ: NY law unconstitutional because usurps Congress'
    power to regulate interstate commerce, including navigation. For NY: Congress
    cannot regulate non-commerce events such as "navigation‖; has no power to regulate
    commerce internal to a state, only between two states.

   OUTCOME/VOTES: Court held that Act of Congress gave full authority to
    defendants' vessels to navigate waters of United States and that law of New York
    prohibiting navigation in waters of state was contrary to Constitution. CJ Marshall
    for the Court. Justice Wm. Johnson concurred.

   COUNSEL: William Pinckney, with Atty Genl Thomas J. Oakley of NY and Thomas
    Addis Emmet, for appellee, Ogden (the New York litigant). Daniel Webster and
    William Wirt, for the appellant, Gibbons (the New Jersey litigant, in favor of federal

   OPINION FOR COURT (Marshall, CJ):
   (1) Common understanding of word "commerce" necessarily included "navigation."
    Thus, Congress has right to regulate navigation as if it were expressly mentioned in
   (2) It has power to regulate commerce "among the several states." "Among" means
    intermingled with, not just between. Thus, commerce power extends internal to
    states because commerce transactions, which can affect states generally, can originate
    and terminate within state border boundaries.

   (3) Although it does not extend to transactions which are completely internal to a
    state, commerce power would be useless if it could not extend beyond state
    boundaries because that is where the transactions occur.

   (4) Commerce power is limited only by Constitution. Congress has full and
    exclusive power to make rules by which interstate commerce is governed. This
    power is centralized in one body, but it can act wherever needed in states
    (5) "The mind can scarcely conceive a system for regulating commerce between
    nations which shall exclude all laws concerning navigation."
   (6) "a congressional power to regulate navigation is as expressly granted as if that
    term had been added to the word 'commerce'."
   (7) ―If, as has always been understood, the sovereignty of Congress, though
    limited to specified objects, is plenary as to those objects, the power over
    commerce with foreign nations and among the several states is vested in
    Congress as absolutely as it would be in a single government, having in its
    constitution the same restrictions on the exercise of the power as are found in the
    Constitution of the United States.‖
   (8) ―It is the power to regulate; that is, to prescribe the rule by which commerce is
    to be governed. This power, like all others vested in Congress, is complete in
    itself, may be exercised to its utmost extent, and acknowledges no limitations,
    other than are prescribed in the constitution.―

   OTHER VIEWS: Justice William Johnson. Concurred in result and generally in

       Critical language by Chief Justice Marshall in Gibbons:
       commerce ―among the several states‖: “The word ―among‖ means
        intermingled with. A thing which is among others, is intermingled with them.
        Commerce among the States, cannot stop at the external boundary line of each
        State, but may be introduced into the interior….Comprehensive as the word
        ―among‖ is, it may very properly be restricted to that commerce which
        concerns more States than one.

       Chief Justice Marshall in Gibbons:
       ―The power of Congress, then, comprehends navigation, within the limits of
        every State in the Union; so far as that navigation may be, in any manner,
        connected with ―commerce with foreign nations, or among the several States.‖

“The Trusts” and Congress
United States v. E. C. Knight Co.,
156 U.S. 1 (1895) Arg October 4, 1894, Dec: January 1, 1895
   FACTS: American Sugar Refining Company, a corporation existing under laws of
    New Jersey, in control of large majority of manufactories of refined sugar in US,

    acquired, through purchase of stock in four Philadelphia refineries, control over
    those manufactories throughout US as gave it practical monopoly of business.
   Monopoly and restraint denounced by act of July 2, 1890, c. 647, 26 Stat. 209, "to
    protect trade and commerce against unlawful restraints and monopolies," are
    monopoly in interstate and international trade or commerce, and not monopoly in
    manufacture of necessary of life.

   FACTS: Franklin Sugar Refinery, the E. C. Knight Co., the Spreckels Sugar Refinery,
    and Delaware Sugar House, incorporated under laws of Pennsylvania and
    authorized to purchase, refine, and sell sugar; four latter Pennsylvania companies
    were located in Philadelphia, and, prior to March, 1892, produced about thirty-three
    percent of total amount of sugar refined in US, and were in active competition with
    American Sugar Refining Co., and with each other, selling product wherever demand
    was found throughout US; prior to March, 1892, American Sugar Refining Co. had
    obtained control of all refineries in US except four located in Philadelphia, and the
    Revere Co. in Boston, latter producing about two percent of amount refined in US.

   FACTS: combination made apparently for reasons of economy in conducting
    business; amount of sugar refined in Philadelphia has increased since purchases;
    price has slightly increased since event, but is still lower than had been for some
    years before and up to within few months of sales; that about ten percent of sugar
    refined and sold in US is refined in refineries other than those controlled by
    American Sugar Refining Co.; some additional sugar produced in Louisiana and
    some brought from Europe, but amount is not large in either instance.
   Object in purchasing Philadelphia refineries was to obtain greater influence or more
    perfect control over business of refining and selling sugar in US.

   FACTS: Result of transaction was creation of monopoly in manufacture of necessary
    of life, which could not be suppressed under provisions of ―Sherman Act" in mode
    attempted in suit, and that acquisition of Philadelphia refineries by New Jersey
    corporation, and business of sugar refining in Pennsylvania, bear no direct relation to
    commerce between States or with foreign nations

   Statement of case by Judge Butler in his opinion in the US Circuit Court: "The
    material facts proved are that the American Sugar Refining Company, one of the
    defendants, is incorporated under the laws of New Jersey, and has authority to
    purchase, refine, and sell sugar; that the Franklin Sugar Refinery, the E. C.
    Knight Company, the Spreckels Sugar Refinery, and the Delaware Sugar House
    were incorporated under the laws of Pennsylvania, and authorized to purchase,
    refine, and sell sugar; that the four latter Pennsylvania companies were located
    in Philadelphia, and, prior to March, 1892, produced about thirty-three percent of
    the total amount of sugar refined in the United States, and were in active
    competition with the American Sugar Refining Company, and with each other,

   their product wherever demand was found for it throughout the United States;
    that prior to March, 1892, the American Sugar Refining Company had obtained
    control of all refineries in the United States excepting the four located in
    Philadelphia and that of the Revere Company in Boston, the latter producing
    about two percent of the amount refined in this country; that in March, 1892, the
    American Sugar Refining Company entered into contracts (on different dates)
    with the stockholders of each of the Philadelphia corporations named whereby it
    purchased their stock, paying therefor by transfers of stock in its company; that
    the American Sugar Refining Company thus obtained possession of the
    Philadelphia refineries and their business; that each of the purchases was made
    subject to the American Sugar Refining Company's obtaining authority to

   increase its stock $25,000,000; that this assent was subsequently obtained, and
    the increase made; that there was no understanding or concert of action between
    the stockholders of the several Philadelphia companies respecting the sales, but
    that those of each company acted independently of those of the others, and in
    ignorance of what was being done by such others; that the stockholders of each
    company acted in concert with each other, understanding and intending that all
    the stock and property of the company should be sold; that the contract of sale in
    each instance left the sellers free to establish other refineries and continue the
    business if they should see fit to do so, and contained no provision respecting
    trade or commerce in sugar, and that no arrangement or provision on this subject
    has been made since; that since the purchase, the Delaware Sugar House

   Refinery has been operated in conjunction with the Spreckels Refinery, and the
    E. C. Knight Refinery in connection with the Franklin, this combination being
    made apparently for reasons of economy in conducting the business; that the
    amount of sugar refined in Philadelphia has been increased since the purchases;
    that the price has been slightly advanced since that event, but is still lower than
    it had been for some years before, and up to within a few months of the sales;
    that about ten percent of the sugar refined and sold in the United States is
    refined in other refineries than those controlled by the American Sugar Refining
    Company; that some additional sugar is produced in Louisiana and some is
    brought from Europe, but the amount is not large in either instance."

   "The object in purchasing the Philadelphia refineries was to obtain a greater
    influence or more perfect control over the business of refining and selling sugar in
    this country."

   Note Chief Justice Fuller‘s distinction between ―monopoly in interstate and
    international trade or commerce‖ and ―a monopoly in manufacture of necessary of

   STATUTE IN QUESTION: act of July 2, 1890, c. 647, 26 Stat. 209, "to protect trade
    and commerce against unlawful restraints and monopolies,― the ―Sherman Anti-
    Trust Act.‖

   CONSTITUTIONAL PROVISIONS: Interstate Commerce Clause, Tenth

   COUNSEL: Solicitor General and Mr. S. F. Phillips, with the Attorney General on the
    brief, for appellant, US; Mr. John G. Johnson, with John E Parsons on brief, for

   COUNSEL: Solicitor General (Lawrence Maxwell, Jr.) and Mr. S. F. Phillips, with the
    Attorney General on the brief, for appellant, US; Mr. John G. Johnson, with John E
    Parsons on brief, for appellees.

   VOTE/OUTCOME (8-1), affirmed lower court: Chief Justice Melville Weston Fuller
    for the Court, with FullerJoined by: Brewer, Brown, Field, Gray, Shiras, White,
    Peckham. In dissent, John Marshall Harlan.

   Sherman Anti-Trust Act: ―every contract, combination in the form of trust, or
    otherwise, or conspiracy in restraint of trade and commerce among the several States
    is illegal, and that persons who shall monopolize or shall attempt to monopolize, or
    combine or conspire with other persons to monopolize trade and commerce among
    the several States, shall be guilty of a misdemeanor.‖

   Question Fuller, CJ, poses:
    ―whether, conceding that the existence of a monopoly in manufacture is established
    by the evidence, that monopoly can be directly suppressed under the act of congress
    in the mode attempted by this bill.‖

   (1) States have ―police powers,‖ regulation of health, safety, and welfare. US has
    power over interstate commerce between states and is exclusive.
   (2) Monopoly of manufacture could only have indirect effect on interstate commerce.
    Difference between "manufacture" and "commerce", commerce succeeds
    manufacture. Controlling manufacture only indirectly controls commerce.
   (3) Congress does not have power to control manufacture because would be too
    intrusive power, necessarily applying to all production of raw materials
    manufactured into higher product and subject to commercial interstate transactions.
   (4) To interpret power to this broadly would leave no power for states to exercise
    pursuant to 10th Amend. All local commerce would be subject to US control. So
    distinction must be made between activities with "direct" affect on commerce, which
    Congress can control, and with merely and "indirect" or incidental effect on
    commerce, which states control.

   (5) Regulation of commerce applies to subjects of commerce, not to matters of
    internal police. Contracts to buy, sell, or exchange goods to be transported among
    several states, transportation and its instrumentalities, and articles bought, sold, or
    exchanged for purposes of such transit among states, or put in transit, may be
    regulated; because they form part of interstate trade or commerce.
   (6) That an article is manufactured for export to another state does not make it article
    of interstate commerce, and intent of manufacturer does not determine time when
    article or product passes from control of state and belongs to commerce.
   OTHER VIEWS (Harlan in dissent): “the general government is not placed by the
    constitution in such a condition of helplessness that it must fold its arms and remain
    inactive while capital combines, under the name of a corporation, to destroy
    competition, not in one state only, but throughout the entire country, in the buying
    and selling of articles- especially the necessaries of life-that go into commerce among
    the states. The doctrine of the autonomy of the states cannot properly be invoked to
    justify a denial of power in the national government to meet such an emergency,
    involving, as it does, that freedom of commercial intercourse among the states which
    the constitution sought to attain....‖

   OTHER VIEWS (Harlan in dissent): Congress can regulate anything obstructing
    interstate commerce and only Congress can restrain it. Interstate commerce starts at
    purchase of item that will cross state lines.

Stafford v. Wallace, 258 U.S. 495 (Arg March 20, 21, 1922; Dec May 1, 1922), Appeals from
   FACTS: Stockyards action against Sec of Agriculture and US Atty to enjoin
    enforcement of Packers and Stockyards Act of 1921 (1921). Court said act attempted
    to regulate business of packers in interstate commerce and forbid unfair,
    discriminatory, or deceptive practices or to do any of number of acts to control prices
    or establish a monopoly. Only question was business done in stockyards between
    receipt of livestock in yards and shipment of them part of interstate commerce,
    brought within power of national regulation. Appellants said transactions took place
    in single state and not within power of Congress to regulate.

   FACTS: Court found stockyards were throat through which current of livestock
    flowed and transactions that occurred there only incident to current from one
    state to another.
   Constitutionality of Packers and Stockyards Act of 1921, August 15, 1921, which
    provides for supervision by federal authority of business of commission men and of
    live stock dealers in great stockyards of US.

   FACTS: Appeals from orders of USDC NDIll, refusing to grant interlocutory
    injunctions. Bills sought to restrain enforcement of orders of Sec of Agriculture
    carrying out act, directed against appellants in No. 687, commission men in Union
    Stockyards of Chicago, and against appellants in No. 691, dealers in same yards.
   Ground relief Stafford et al. seek is Secretary's orders are void, because made under
    act invalid against each class of appellants.

Union Stockyards, 1866
View of Union Stock Yards 47th St and Loomis St 1924
Union Stockyards, 1941

Prize cattle
G. B. Van Norman, Philip D. Armour, Jr., and James Brown, horseback
Prize stock purchased for railroad dining car service
Sheep run, Thomas A. Edison, Inc. ; producer, James White.
1906 inspectors

Stafford v. Wallace Cont’d
   STATUTE IN QUESTION: Packers and Stockyards Act of 1921. To ―regulate
    interstate and foreign commerce in live stock, live-stock produce, dairy products,
    poultry, poultry products, and eggs, and for other purposes.‖
   Prohibited packers from engaging in unfair and deceptive practices, giving undue
    preferences to persons or localities, apportioning supply among packers in restraint
    of commerce, manipulating prices, creating a monopoly or conspiring to aid in
    unlawful acts. .

   Stockyards quasi-public utilities and required yard officers, agents and employees to
    register with US. Stockyards forbidden from dealing in livestock they handled, and
    required maintain accurate weights and measures and pay shippers promptly.
   Only stockyards with pen space larger than twenty thousand square feet regulated.

    Tenth Amendment.

   VOTES/OUTCOME: 8-1. Lower court affirmed. Chief Justice Taft for the Court.
    Justice McReynolds dissented without opinion. Justice Day did not sit in cases and
    took no part in decision.

   COUNSEL: Mr. Elwood G. Godman, with Mr. Edwin W. Sims, Mr. Albert G. Welch
    and Mr. Frederic R. De Young on brief, for appellants, in No. 687. Mr. Levy Mayer,
    for appellants, in No. 691. Solicitor General Beck, with Mr. Blackburn Esterline,
    Special Assistant to AG, and Mr. Bayard T. Hainer on brief, for appellees.

   (1) ―The object to be secured by the act is the free and unburdened flow of
    livestock from the ranges and farms of the West and Southwest through the great
    stockyards and slaughtering centers on the borders of that region, and thence in
    the form of meat products to the consuming cities of the country in the Middle
    West and East, or, still as livestock, to the feeding places and fattening farms in
    the Middle West or East for further preparation for the market.‖

   (2) The stockyards, therefore, were ―not a place of rest or final destination.‖ They
    were ―but a throat through which the current flows,‖ and the sales there were not
    merely local transactions. ―They do not stop the flow;—but, on the contrary‖ are
    ―indispensable to its continuity.‖

   (3) Report of Agriculture: for more than two decades it had been charged that
    five great packing establishments of Swift, Armour, Cudahy, Wilson, and Morris,
    called 'Big Five,' were engaged in conspiracy in violation of Anti-Trust Law, to
    control business of purchase of live stock, preparation for use in meat products,
    and distribution and sale in US and abroad. In 1903 US filed bill in equity to
    enjoin further conduct of alleged conspiracy as violation of Anti-Trust Law.
    Supreme Court sustained injunction. Swift v. United States, 196 US 375.

   (4) FTC Report: ―The big packers' control of these markets is much greater than
    these statistics indicate. In the first place, they are the largest and in some cases
    practically the only buyers at these various markets, and as such hold a whip
    hand over the commission men who act as the intermediaries in the sale of live

   (5) FTC Report: The packers' power is increased by the fact that they control all
    the facilities through which live stock is sold to themselves. Control of stockyards
    comprehends control of live stock exchange buildings, where commission men
    have their offices; control of assignment of pens to commission men; control of
    banks and cattle loan companies; control of terminal and switching facilities;
    control of yardage services and charges; control of weighing facilities; control of
    the disposition of dead animals and other profitable yard (next page)

   monopolies; and in most cases control of all packing house and other business
    sites. Packer-owned stockyards give these interests access to records containing
    confidential shipping information, which is used to the disadvantage of shippers
    who have attempted to forward their live stock to a second market.”'

National Industrial Recovery Act
―Hot Oil Cases‖
   Panama Refining Company v. Ryan (―Hot Oil Cases‖), 1935: 8-1 (Cardozo in
    dissent), Court struck down ―hot oil‖ codes, pursuant to NIRA, as
    unconstitutional delegation of legislative authority to the executie

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495 (1935)
   FACTS: National Industrial Recovery Act gave power to industries to draft codes of
    fair competition, which then became law. Schechter butcher in Bklyn, convicted of
    violating Live Poultry Code. Challenged on basis of interstate commerce (chickens
    have come to rest by the time they reach him). Court (Hughes) NIRA
    unconstitutional. Schechter is not in interstate commerce. Effects on interstate
    commerce must be direct, not indirect. Not selling across state lines but to
    intermediary. Very hard distinction to maintain, but Hughes trying to stop
    commerce clause from swallowing everything. Cardozo concurs, using image of a
    center and periphery proximate cause; some effects too attenuated.

   FACTS: Schechters in business of slaughtering chickens and selling them to retailers.
    Bought fowls from commission men in market where most of supply was shipped in
    from other States, transported them to their slaughterhouses, and held there for
    slaughter and local sale to retail dealers and butchers, who in turn sold directly to
    consumers. Indicted for disobeying requirements of a "Code of Fair Competition for
    Live Poultry Industry of Metropolitan Area in and about City of New York,"
    approved by Pres under § 3 of NIRA.

   FACTS: Alleged violations: failure to observe provisions fixing minimum wages
    and maximum hours for employees; permitting customers to select individual
    chickens from particular coops and half-coops; sale of an unfit chicken; sales not in
    compliance with municipal inspection regulations and to slaughterers and dealers
    not licensed under such regulations; making false reports, and failure to make
    reports relating to range of daily prices and volume of sales.

   STATUTE, REGULATION AT ISSUE: National Industrial Recovery Act
    of 1933, "Code of Fair Competition for the Live Poultry Industry of the Metropolitan
    Area in and about the City of New York.―

   CONSTITUTIONAL PROVISIONS: Interstate Commerce Clause, Tenth
    Amendment, Art. I, § 1; Art. I, § 8, par. 18 (―To make all Laws which shall be
    necessary and proper for carrying into Execution the foregoing Powers and all other
    Powers vested by this Constitution in the Government of the United States, or in any
    Department or Officer thereof‖)

   COUNSEL: Messrs. Joseph Heller, Frederick H. Wood, and Jacob E. Heller, all of
    New York City, for petitioner A.L.A. Schechter Corporation and others. The
    Attorney General (Cummings) and Messrs. Stanley F. Reed, Sol. Gen., and
    Donald R. Richberg (NRA), both of Washington, D.C., for US.

   (1) Extraordinary conditions, e.g., economic crisis, may call for extraordinary
    remedies, but cannot create or enlarge constitutional power.
   (2) Constitution does not permit Congress to abdicate, or to transfer to others,
    essential legislative functions it is vested with. Art. I, § 1; Art. I, § 8, par. 18.
    Panama Refining Co. v. Ryan. ―Hot Oil Case,‖ invalid delegation.
    (3) Congress may let instrumentalities make subordinate rules within prescribed
    limits and find facts to which its policy is to apply; but it must lay down the
    policies and establish standards.
   (4) Delegation of legislative power to President by § 3 of National Industrial
    Recovery Act of June 16, 1933, is unconstitutional and Act unconstitutional as
    applied. It exceeds power of Congress to regulate interstate commerce and
    invades power reserved exclusively to States
    (5) Section 3 of NIRA provides "codes of fair competition," to be "standards of fair
    competition" for trades and industries covered, may be approved by Pres upon
    application of representative associations of trades or industries, or may be
    prescribed by him on own. Provs of codes enforced by injunctions from federal
    courts, and "any violation of any of their provisions in any transaction in or
    affecting interstate commerce" deemed an unfair method of competition within
    meaning of Federal Trade Commission Act.
    (6) Punished as crime against US. Before approving, Pres to make certain
    findings re character of association presenting code and absence of design to
    promote monopoly or oppress small enterprises; must find will "tend to
    effectuate the policy of this title." Codes permitting monopolies or monopolistic
    practices forbidden.
    (7) Pres may "impose such conditions (e.g., requirements for making of reports,
    keeping of accounts) for protection of consumers, competitors, employees and
    others, in furtherance of the public interest, provide exceptions and exemptions
    from provisions as deems necessary "to effectuate the policy herein declared."
    Code prescribed by him is to have same effect as one approved on application.

    (8) Only limits on President's discretion are to find, first, association or group
    proposing a code imposes no inequitable restrictions on admission and is truly
    representative; second, code is not designed to promote monopolies or eliminate or
    oppress small enterprises and will not operate to discriminate against them; and
    third, "will tend to effectuate the policy of this title".
    (9) Court‘s previous decisions defining and sustaining powers granted to the
    Interstate Commerce Commission, to the Radio Commission, and to the President
    when acting under the "flexible tariff" provisions of the Tariff Act of 1922 do not
    support such a sweeping delegation of legislative power.
   (10) When poultry reached slaughterhouses, interstate commerce had ended, and
    transaction, including matters charged in indictment, in intrastate commerce.
   (11) Distinction between intrastate acts that directly affect interstate commerce,
    subject to fed regulation, and affect only indirectly, remain subject to power of
    States exclusively, is clear in principle, though precise line drawn only in
    individual cases arise.
   (12) If commerce clause construed to reach all enterprises and transactions said to
    have indirect effect on interstate commerce, fed authority would embrace
    practically all economic activities and authority of State over domestic concerns
    would exist only by sufferance of Federal Government.
   (13) Distinction between direct and indirect effects has long been clearly
    recognized in the application of the Anti-Trust Act. Fundamental and essential to
    maintenance of our constitutional system.

   DIFFERING VIEW: Cardozo, concurs (joined by Stone): ―The delegated power
    of legislation which has found expression in this code is not canalized within
    banks that keep it from overflowing. It is unconfined and vagrant, if I may
    borrow my own words in an earlier opinion. Panama Refining Co. v. Ryan.”

   Cardozo, J: “…anything that Congress may do within the limits of the commerce
    clause for the betterment of business may be done by the President upon the
    recommendation of a trade association by calling it a code. This is delegation
    running riot. No such plenitude of power is susceptible of transfer. The statute,
    however, aims at nothing less, as one can learn both from its terms and from the
    administrative practice under it. Nothing less is aimed at by the code now
    submitted to our scrutiny.‖

Carter v. Carter Coal, 298 US 238
   Bituminous Coal Conservation Act of 1935, known as Guffey Coal Act,
    after Sen Joseph Guffey of PA. Replaced previous codes by NIRA of
   Instability in coal prices
   Labor strife in coal fields. Violence. Union organizing, competition
    between unions and mine owners‘ resistance to labor organizations.
298 US 238 Arg: March 11, 12, 1936, Dec: May 18, 1936

   FACTS: Bituminous Coal Conservation Act of 1935 replaced previous codes by
    NIRA. New act established commission, made up of coal miners, coal producers,
    and public, to establish fair competition standards, production standards, wages,
    hours, and labor relations. Mines required to pay 15% tax on coal produced.
    Formally, not mandatory, but compliant mines refunded 90% of 15% tax. James W.
    Carter shareholder of Carter Coal Company and argued company should not join
    government program. Board of Directors thought could not afford to pay tax and not
    receive anything back. Carter sued Carter Coal, claimed coal mining was not
    interstate commerce and therefore could not be regulated by federal government.

   COUNSEL: Oral argument Mr. Frederick H. Wood for Mr. James Walter Carter,
    petitioner in No. 636 and respondent in No. 651. Mr. Wood and Mr. William D.
    Whitney filed brief for Mr. Carter.
   Oral argument, in part, of Assistant Attorney General Dickinson for respondents in Nos.
    636 and 649 and petitioner in No. 651: Solicitor General Reed, Assistant Attorney General
    Dickinson, and Messrs. Charles H. Weston, F.B. Critchlow, A.H. Feller, Charles Harwood,
    and Robert L. Stern filed brief for government officers.
   Mr. Charles I. Dawson, with Mr. A. Shelby Winstead on brief, for petitioners in Nos. 649
    and 650. Mr. Karl J. Hardy submitted for Carter Coal Co. et al., respondents in Nos.
    636 and 651. Mr. Joseph Selligman submitted for respondent in No. 650.

   COUNSEL: Briefs of amici curiae: Mr. Otto Kerner, Attorney General of Illinois, and
    Mr. Kent E. Keller, on behalf of Illinois; Mr. Philip Lutz, Jr., Attorney General of
    Indiana, and Mr. Urban C. Stover, First Deputy Attorney General, on behalf of
    Indiana; Mr. A. E. Funk, Assistant Attorney General of Kentucky, on behalf of
    Kentucky; Mr. Frank H. Patton, Attorney General of New Mexico, on behalf of New
    Mexico; Mr. John Caren, on behalf of State of Ohio; Mr. Charles J. Margiotti, Attorney
    General of Pennsylvania, and Messrs. Grover C. Ladner and Edward Friedman, Deputy
    Attorneys General, on behalf of Pennsylvania; Mr. G. W. Hamilton, Attorney General
    of Washington, and Messrs. Geo. G. Hannan and E. P.

   COUNSEL: Donnelly, Assistant Attorneys General, on behalf of State of Washington;
    Mr. Henry Warrum, on behalf of United Mine Workers of America; and Messrs. A. M.
    Liveright, Thurlow G. Essington, John L. Steinbugler, and C. F. C. Arensberg, on behalf of
    members of Bituminous Coal Code—support validity of Act.
   Messrs. Rolla D. Campbell, John W. Davis, E. L. Greever, Don Rose, Robert S. Spilman,
    Edwin S. S. Sunderland, Malcolm Fooshee, Walter T. Kinder, Wm. E. Stevenson, Edward E.
    Barthell, Lee C. Bradley, Jr., Henry E. Colton, Wm. C. Cherry, George T. Evans, Matthew C.
    Fleming, Virgil Y. Moore, J. Van Dyke Norman, Percy Allen Rose, and Morris H. Winger,
    for certain commercial producers of bituminous coal; and Messrs. Forney Johnston and
    Jos. F. Johnston, for certain producers of bituminous coal in State of Alabama--
    challenged validity of Act.

   VOTES/OUTCOME: 6-3. Hughes, Van Devanter, McReynolds, Brandeis,
    Sutherland, Butler, Stone, Roberts, Cardozo. Justice Sutherland for Court. JUSTICE
    CARDOZO dissented in Nos. 66, 649 and 650, and in No. 651 concurred in result),
    with JUSTICE BRANDEIS and JUSTICE STONE in this opinion.

   STATUTE IN QUESTION: Bituminous Coal Conservation Act of 1935.

   CONSTITUTIONAL PROVISIONS: Interstate Commerce Clause, Tenth
    Amendment, Taxing and Spending Clause, or General Welfare.

      OPINION FOR Court (Sutherland, J):
   (1) So-called excise tax, imposed by Act, of 15% of sale price or market value at mine
    of all bituminous coal produced in US, subject to return of 13 1/2% given to those
    who submit to price-fixing and labor provisions, is not tax, but penalty to coerce
    submission, and cannot be upheld on federal taxing power
    (2) Provisions attempt to control wages, hours, and working conditions of miners
    engaged in production of coal, seeking to guarantee their right of collective
    bargaining, are beyond powers of Congress.
     (a) Constitution grants to Congress no general power to regulate for promotion of

       general welfare.
     (b) Power expressly granted Congress to regulate interstate commerce does not

       include power to control conditions in which coal is produced before becomes an
       article of commerce.
     (c) Effect on interstate commerce in coal of labor conditions involved in its

       production, including disputes and strikes over wages is indirect effect.

   (3) Mine owner would incur prohibitive tax and be deprived of right to sell coal to US
    or any of its contractors--regulations are compulsory. Because of compulsion,
    provisions to authorize part of producers and miners to fix hours for entire industry
    and in districts to fix minimum wages in their districts are legislative delegation in
    most obnoxious form; clearly violate Fifth Amendment.

   (4) SC has always rejected proposition that power of federal government extends to
    all purposes affecting Nation as whole with which States severally cannot deal and
    related notion that Congress, apart from delegated powers, may enact laws to
    promote general welfare.
    (5) Effective destruction of states: If US begins taking over powers of States,
    States may be so deprived of powers, or be so relieved of responsibilities, to
    reduce them to little more than geographical divisions of national domain.
   (6) Production and manufacture of commodities are not commerce, even with
    intent to sell or transport commodities out of State.
   (7) Possibility or even certainty of exportation of product from State does not put
    in interstate commerce before has begun to move from State. To hold otherwise
    would be to nationalize all industries.
   (8) Producers or manufacturers of commodity, later sold and shipped in interstate
    commerce, have engaged in two distinct and separate activities. Production and
    manufacturing business is purely local. Selling or shipping or contracting to do so, to
    customers in another State, is in interstate commerce. Production is not commerce,
    but step in preparation for commerce.

   DIFFERING VIEW (Justice Cardozo, concurs in part and dissents in part, with Stone,
    Brandeis): Holds that coal mining, although not interstate commerce, has effect on
    interstate commerce and therefore is within power of Congress to reach. Can use Tax
    Clause to reach.

   IMPLICATIONS: Congress cannot regulate wage, hours, conditions, and collective
    bargaining via commerce clause and taxing spending clauses; production and
    manufacturing is local, has only indirect effect on interstate commerce.

   QUESTION: Can Congress deal with violence and unstable labor relations in vital
    industries such as coal, steel, etc.?

U.S. 1 (1937)
   National Industrial Recovery Act of 1933:
   Section 7(a) of the NIRA SEC. 7. (a) Every code of fair competition, agreement, and
    license approved, prescribed, or issued under this title shall contain the following
    conditions: (1) That employees shall have the right to organize and bargain
    collectively through representatives of their own choosing, and shall be free from the
    interference restraint, or coercion of employers of labor, or their agents, in the
    designation of such representatives or in self-organization or in other concerted
    activities for the purpose of collective bargaining or other mutual aid or protection;

   NIRA of 1933:
   Section 7(a) of the NIRA SEC. 7…. (2) that no employee and no one seeking
    employment shall be required as a condition of employment to join any company
    union or to refrain from joining, organizing, or assisting a labor organization of his
    own choosing; and (3) that employers shall comply with the maximum hours of
    labor, minimum rates of pay, and. other conditions of employment, approved or.
    prescribed by the President.

National Labor Relations Act of 1935, or Wagner
   National Labor Board (NLB) independent agency established on August 5, 1933,
    to handle labor disputes under NIRA. Seven members. Three members
    represented labor: AFL president William Green, UMW president John L. Lewis;
    and Leo Wolman, Amalgamated Clothing Workers of America; industrial
    members, GE president Gerard Swope; Walter Teagle, Standard Oil of NJ; Louis
    Kirstein, VP of Filenes of Boston. Chairman US Senate Robert Wagner.
Secretary Perkins with Carnegie steel workers during 1933 NIRA drive
CIO achieved great victory when forced “Little Steel” companies of Eugene Grace of Bethlehem Steel
Corp to recognize Steel Workers Organizing Committee as bargaining agent for steel workers in 1942
Senator Robert Wagner, D, NY
Aliquippa blast furnace, JL steel
Reverend H.L. Queen attempting to pass through picket lines outside Jones &
Laughlin steel plant in Aliquippa, Pennsylvania, May 13, 1937.
First test of NRLA, NLRB officials watched as Jones & Laughlin Steel workers voted on whether Steel Workers
Organizing Committee (SWOC) should be sole bargaining agency. During vote, eight Republic Steel Corporation
police officials arrested for attempting to break up election. After successful vote, J and L signed contract with SWOC
to represent plant's 27,000 employees.

(1937), Arg February 10 – 11, 1937 Dec April 12, 1937.

   FACTS: Jones & Laughlin was the nation's fourth largest steel producer and the
    charges brought against it were that the company discriminated against workers
    who wanted to join a labor union. The company had fired ten employees at its
    plant in Aliquippa, PA after they moved to unionize. The NLRB ruled against the
    company and ordered the workers be rehired and given back pay, but Jones &
    Laughlin refused to comply on the grounds that they believed the act was
    unconstitutional. Citing SCT precedent, lower courts agreed
   In proceeding under NLRAct of 1935, NLRB found that respondent, Jones &
    Laughlin Steel Corp, violated Act in unfair labor practices affecting commerce.
    Proceeding instituted by Beaver Valley Lodge No. 200, affiliated with
    Amalgamated Association of Iron, Steel and Tin Workers of America. Unfair

    labor practices charged discriminating against members of union in hiring and
    tenure of employment and coercing and intimidating employees in order to
    interfere with self-organization. Discriminatory and coercive action alleged was
    discharge of certain employees.

   NLRB sustained charge and ordered corporation to cease and desist from
    discrimination and coercion, offer reinstatement to ten employees named, make
    good their losses in pay, and post for thirty days notices that corporation would
    not discharge or discriminate against members, or those desiring to become
    members, of union. Corporation failed to comply and Board petitioned Circuit
    Court of Appeals to enforce order. CCA denied petition and held order beyond
    range of federal power.

   Court reduced distinction between ―direct‖ and ―indirect‖ effects and permitted
    Congress to regulate productive industry and labor relations. National Labor
    Relations Act of 1935 declared right of workers to organize, forbade unlawful
    employer interference, established procedures by which workers could choose
    exclusive bargaining representatives with which employers were required to
    bargain, and created a board to oversee all these processes.

   MAJORITY: ―The close and intimate effect,‖ Hughes said, ―which brings the
    subject within the reach of federal power may be due to activities in relation to
    productive industry although the industry when separately viewed is local.‖ Not
    ―indirect.‖ Considering defendant‘s ―far–flung activities,‖ effect of strife between
    it and its employees ―would be immediate and [it] might be catastrophic. We are
    asked to shut our eyes to the plainest facts of our national life and to deal with the
    question of direct and indirect effects in an intellectual vacuum . . . .

   MAJORITY: When industries organize themselves on a national scale, making
    their relation to interstate commerce the dominant factor in their activities, how
    can it be maintained that their industrial labor relations constitute a forbidden
    field into which Congress may not enter when it is necessary to protect interstate
    commerce from the paralyzing consequences of industrial war? We have often
    said that interstate commerce itself is a practical conception. It is equally true that
    interferences with that commerce must be appraised by a judgment that does not
    ignore actual experience.‖

   Jones & Laughlin argues (1) Act in reality regulation of labor relations, not of
    interstate commerce; (2) Act can have no application to its relations with its
    production employees, because are not subject to regulation by US government,
    and (3) provisions of Act violate § 2 of Article III and Fifth and Seventh Amends.

   VOTES/OUTCOME (5-4): Chief Justice Hughes for Stone, Brandeis, Cardozo,
    Roberts; in dissent, McReynolds for Van Devanter, Sutherland, Butler.

   STATUTE IN QUESTION: National Labor Relations Act of 1935, 29 U.S.C. § 151
    et seq.

   CONSTITUTIONAL PROVISIONS: Interstate Commerce Clause, Due Process
    of Fifth Amendment, Seventh Amendment.

   COUNSEL: Mr. J. Warren Madden and Solicitor General Reed, with whom
    Attorney General Cummings and Charles E. Wyzanski, Jr., Charles A. Horsky,
    A.H. Feller, Charles Fahy, Robert B. Watts, Philip Levy, and Malcolm F. Halliday
    were on the brief, for petitioner.
   Mr. Earl F. Reed, with whom Messrs. Charles Rosen and W.D. Evans were on the
    brief, for respondent. In Associated Press v. NLRB, Mr. John W. Davis, with
    whom Messrs. William C. Cannon, Harold W. Bissell, and Edwin F. Blair on brief, for
    Associated Press.

   COUNSEL: Briefs were filed by Messrs. Harry Friedman and Maurice Friedman, on
    behalf of Commercial Telegraphers' Union, and by Messrs. Morris L. Ernst,
    Callman Gottesman and Joseph B. Ullman and Harriet F. Pilpel, on behalf of
    American Newspaper Guild, as amici curiae, supporting Act. Brief was filed by
    Mr. Elisha Hanson, on behalf of American Newspaper Publishers Association, as
    amicus curiae, challenging Act.

   (1) Distinction between national and local in commerce vital to maintenance of our
    federal form of government.
   (2) If act directly burdens or obstructs interstate or foreign commerce, or free flow, is
    within reach of congressional power; includes acts from labor disputes.
   (3) Employees in industry have fundamental right to organize and select
    representatives for collective bargaining; discrimination or coercion by employer to
    prevent free exercise of right is proper subject for Congress to prohibit.

   (4) Congressional authority to protect interstate commerce from
    burdens/instructions not limited to transactions deemed an essential part of a
    "flow" of such commerce.
   (5) Though acts may be intrastate when separately considered, if close and
    substantial relation interstate commerce so control essential, or appropriate, to
    protect commerce from burdens/obstructions, Congress has power to control.
   (6) Relation to interstate commerce of enterprise here such that stoppage of its
    operations by industrial strife would have immediate, direct and paralyzing effect
    on interstate commerce. Congress had constitutional authority, for protection of

    interstate commerce, to safeguard right of employees in manufacturing plant to
    self-organization and free choice of representatives for collective bargaining
   (7) Power must be viewed in light of dual system of government; may not
    embrace effects on interstate commerce so indirect and remote that to embrace
    would, in complex society, obliterate distinction between national and local and
    create completely centralized government. Question of degree
   (8) Close and intimate effect, which brings subject within federal reach, may be in
    productive industry, although industry when separately viewed local.
   (9) NLRA, safeguarding employee rights and empowering NLRB, in this case
    confined control of industrial relationship as may be constitutionally exercised by
    Congress to prevent burden/obstruction to interstate or foreign commerce from
    industrial disputes

   DIFFERENT VIEW (McReynolds, for dissenters):
   Adheres to distinction between direct and indirect effects and national v. local;
    claims majority opinion is a departure from well-settled law, Carter v. Carter Coal
    and Schechter Poultry v. United States. To uphold congressional action in context
    of this case would be to permit Congress to reach any action, no matter how local
    or how indirectly related to interstate commerce.

   Signaled a narrow majority‘s willingness to countenance a broad interpretation of
    ―interstate commerce‖ and thus uphold central portions of the New Deal then
    pending; Court retains concepts of national v. local and indirect v. direct effects.
    Considerable uncertainty remained re whether Court would continue to take this
    view of interstate commerce, since it had been inconsistent.

Wickard v. Filburn, 317 U.S. 111 (1942)
   BACKGROUND: Agricultural Adjustment Act of 1933 invalidated in U.S. v.
    Butler: tax on agricultural processors unconstitutionally "invade[d] the
    reserved rights of the states" insofar as it purported "to regulate and control
    agricultural production, a matter beyond the powers delegated to the federal
    government." US v. Butler followed ALA Schechter Poultry (1935), in which
    Court invalidated NIRA for regulating intrastate commerce and non-
    delegation doctrine.
               Claude R. Wickard, Secretary of Agriculture
                            Roscoe Filburn
   Roscoe Filburn, a farmer in Montgomery County, Ohio, planted 23 acres of
    wheat in fall 1940 and harvested 462 bushels in July 1941. He thereby
    exceeded his acreage allotment for that planting season under Agricultural
    Adjustment Act of 1938. Acting under 1938 Act, agricultural conservation
    committee for Montgomery County assessed a penalty of $0.49 against each of
    Mr. Filburn's 239 excess bushels. Mr. Filburn challenged penalty, and entire
    Agricultural Adjustment Act, as a violation of constitutional limits on
    Congress's power to regulate interstate commerce. The Filburn farm today is,
    practically speaking, site of Salem Mall near Dayton, Ohio. Photo of Roscoe
    Filburn at time of his Supreme Court case provided by daughter, Mary Lou

   PRO ARGUMENT: Congress does not have power under commerce clause to
    regulate production and consumption of wheat because these activities are local in
    character and, at most, have indirect effect on interstate commerce.

   CON ARGUMENT: Statute does not regulate production or consumption of wheat,
    but only marketing; and even if goes beyond marketing, it is "necessary and proper"
    in this case

Secretary Claude R. Wickard
   Born February 23, 1893 on family farm in Carroll County, Indiana. In 1915 began long
    career as agriculturist on graduation from Purdue with BS degee in Animal
    Husbandry. Wickard took over management of family farm. Distinguished himself
    by initiating improved farming methods and feeding policies winning numerous
    medals and awards which let to his selection as Master Farmer of Indiana" in 1927.
    Before appointment to AAA in 1933, active in number of farm organizations and
    served one term (1932-1933) in Indiana legislature as State Senator from largely
    agricultural counties of Carrol, White and Clinton. In Washington, Wickard began
    work as assistant chief of AAA corn-hog section and 1935 made chief. When AAA
    started agricultural conservation program in 1936, named assistant director and
    shortly made director. His rise through Dept coincided with better times for farmers.
   In February 1940, was appointed Under-Secretary. Six months later, FDR named
    Wickard Secretary. In wartime, developed & administered programs to enabled US
    farmer to produce enough food to feed country, its armed forces and most of allies.
    By 1945 US level of food production high enough to make difference between life and
    death for many people in war-torn countries of Europe. After serving as Secretary for
    three months under Truman, Wickard resigned in July 1945 to become administrator
    of Rural Electrification Administration.

317 U.S. 111 (1942)
 FACTS: Appeal from US DCSD Ohio, three-judge permanently enjoined Secretary of
  Agriculture and others from enforcing penalties against Filburn under AAA. Filburn
  filed complaint v. Secretary and govt officials to enjoin enforcement of marketing
  penalty imposed by amendment to Agricultural Adjustment Act of 1938 and seeking
  declaratory judgment that wheat marketing quota provisions of Act were
  unconstitutional. In 1940, under authority of AAA Act of 1938, Roscoe Filburn was

    limited for the next to planting 11 acres of wheat and harvesting 20 bushels per acre.
    Harvested 12 acres over his allotment for consumption on his own property;

   US fined him and he refused to pay. USDC held petitioner's speech advocating
    quotas had invalidated required referendum of farmers affected by quota and
    enjoined collecting a marketing penalty from Filburn and from subjecting his entire
    crop to lien for payment of penalty and from collecting a penalty. SCourt determined
    petitioner's speech to have no effect of invalidating a referendum. Filburn's complaint
    was found frivolous and injunction unwarranted. Court also found Act amendment
    not violative of U.S. Const. Amend V. Filburn not denied due process by penalty
    imposed because US regulation was by an authorized act of Congress and was within
    its commerce powers.

   Test case for new Agricultural Adjustment Act. Ohio farmer Roscoe C. Filburn sued
    Secretary Wickard over part of AAA re wheat acreage allotment. Under AAA, DoA
    designated 11.1 acres of Filburn's land for wheat sowing and established normal
    wheat yield for this acreage. Filburn defied DoA‘s directive by sowing wheat on
    more than 11.1 acres and exceeding his yield. Constituted farm marketing excess, and
    Filburn was penalized $117.11. Filburn refused to pay fine, US issued a lien against
    his wheat and loca Agriculture Committee denied him a marketing card. Card
    necessary to protect Filburn's buyers from liability for fine and to protect buyers from
    US lien on Filburn's wheat

   FACTS: Penalty was contingent upon an act Filburn committed after enactment
    of statute, and had he chosen to act differently, no penalty would have been
    demanded. Reversed district court.

   STATUTE IN QUESTION: Agricultural Adjustment Act of 1938 (soil
    conservation amendments).
   CONSTITUTIONAL PROVISIONS: Interstate Commerce Clause, Tenth

   VOTE/OUTCOME: 9-0. Lower court reversed. Jackson for Stone, Roberts, Black,
    Reed, Frankfurter, Douglas, Murphy, and Byrnes.

   COUNSEL: SG General Fahy, w/ Asst AG Arnold and Messrs. Robert L. Stern, John
    Yost, W. Carroll Hunter, and Robert H. Shields on briefs, on original argument and
    reargument (Mr. James C. Wilson also on brief on original argument), for appellants,
    US and Secretary of Agriculture. Messrs. Webb R. Clark and Harry N. Routzohn, w/
    Mr. Robert S. Nevin on briefs, for Filburn. Messrs. Wm Lemke, Louis M. Day, and T.
    A. Billingsly filed brief amici curiae support of Filburn.

   OPINION FOR COURT (Jackson, J):
   (1) Pending referendum of farmers on wheat quotas proclaimed by Sec of Agriculture
    under AAA, Sec made radio address advocated approval of quotas and called
    attention to recent congressional amendment, later approved May 26, 1941. Speech
    mentioned provisions for increase of loans on wheat but not increase in penalty on
    excess production. Contended: Because of uncertain world situation extra acreage of
    wheat had been planted and "farmers should not be penalized because they have
    provided insurance against shortages of food."
    (1 cont) BUT no evidence subsequent referendum approving quotas was influenced
    by speech. Even assuming penalties referred to in speech were those prescribed by
    Act, validity of vote not affected.
   (2) Wheat marketing quota and penalty provisions of Agricultural Adjustment Act of
    1938, amended May 26, 1941, when applied to wheat not intended in any part for
    commerce but wholly for consumption on farm are within commerce power of
   (3) Effect of Act is to restrict amount of wheat produced for market and extend as
    well to that which may forestall resort to market by producing for own needs.
    (4) Production of wheat for consumption on farm may be trivial in particular
    case, but does not remove grower from scope of US regulation--contribution,
    taken with many others similarly situated, far from trivial.
   (5) Power to regulate interstate commerce includes power to regulate prices at
    which commodities in commerce are dealt in and practices affecting prices.
    (6) Volume and variability of wheat grown for home consumption would have
    substantial influence on price conditions on wheat market, both because such wheat,
    with rising prices, may flow into market and check price increases and, because,
    though never marketed, it supplies need which would otherwise be satisfied by
    purchases in open market.

   (7) Amendment, which increased penalty upon "farm marketing excess" and
    included wheat previously not subject to penalty, not invalid as retroactive
    legislation contrary to 5th Amend applied to wheat planted and growing before
   IMPLICATIONS: (1) Court broad scope to commerce power in agriculture and
    gives up distinction between direct and indirect effects. Practical effect of
    economic activity, rather than formal definitions (e.g., US v. E. C. Knight). (2)
    Congress can consider aggregate of effects on interstate commerce, rather than
    isolating effects.
Supreme Court’s challenge to Congress in the 1990s:
Conservative Court v. Democratic Congress
   Prinz v. United States (invalidation, in part, of the Brady Bill, gun control)
   Seminole Tribe v. Florida (limitation of congressional limit on state sovereign
   Alden v. Maine (eliminated vindation of FLSA in state courts)
United States v. Lopez, 514 U.S. 549
   FACTS: Gun Free School Zones Act of 1990 made federal offense "for any
    individual knowingly to possess a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone.― On March 10,
    1992, Lopez, then in 12th grade, arrived at Edison High School in San Antonio,
    TX, carrying concealed .38 caliber handgun and five bullets. Acting on
    anonymous tip, school authorities confronted respondent, who admitted was
    carrying weapon. Lopez was arrested and charged under Texas law with firearm
    possession on school premises.
   Next day, state charges dismissed after federal agents charged respondent with
    violating Gun Free School Zones Act of 1990. Federal grand jury indicted
    respondent on one count of knowing possession of firearm at school zone. Lopez
    moved to dismiss indictment on ground §922(q) "is unconstitutional as it is
    beyond the power of Congress to legislate control over our public schools.―
   USDC denied, concluding §922(q) "is a constitutional exercise of Congress' well
    defined power to regulate activities in and affecting commerce, and the `business' of
    elementary, middle and high schools . . . affects interstate commerce."
   Lopez waived right to jury trial. USDC conducted bench trial, found guilty of
    violating §922(q), and sentenced six months' imprisonment and two years'
    supervised release.
   On appeal, Lopez challenged conviction on claim §922(q) exceeded Congress'
    power to legislate under Commerce Clause. USCA 5th agreed, reversed
    conviction: insufficient congressional findings and legislative history, "section
    922(q), in the full reach of its terms, is invalid as beyond the power of Congress
    under the Commerce Clause."

   COUNSEL: Solicitor General Days argued for US. With him on briefs Asst AG
    Harris, Depty SG Wallace, Malcolm L. Stewart, and John F. De Pue. John R. Carter
    argued for respondent. With him on brief Lucien B. Campbell, Henry J. Bemporad,
    Carter G. Phillips, and Adam D. Hirsh.
   Briefs of amici curiae for reversal for 16 Members of US Senate et al. by Debra A.
    Valentine, Brady C. Williamson, and Jeffrey J. Kassel; for State of Ohio et al. by Lee
    Fisher, AG of Ohio, John P. Ware, Asst AG, Richard A. Cordray, State Solicitor,
    Simon B. Karas, G. Oliver Koppell, AG of New York, and Vanessa Ruiz; for Center to
    Prevent Handgun Violence et al. by Erwin N. Griswold, Dennis A. Henigan, and Gail
    A. Robinson; for Children NOW et al. by William F. Abrams; for

   COUNSEL: Clarendon Foundation by Ronald D. Maines; for Coalition to Stop Gun
    Violence et al. by Brian J. Benner; and for National School Safety Center et al. by
    James A. Rapp.

   Briefs of amici curiae for affirmance filed for National Conference of State
    Legislatures et al. by Richard Ruda and Barry Friedman; and for Pacific Legal
    Foundation by Ronald A. Zumbrun and Anthony T. Caso.
   Briefs of amici curiae filed for Academics for the Second Amendment et al. by Patrick
    J. Basial, Don B. Kates, Robert Carter, Henry Mark Holzer, Nicholas J. Johnson,
    Joseph E. Olson, Daniel Polsby, Charles E. Rice, Wallace Rudolph, Justin Smith,
    Robert B. Smith, George Strickler, Richard Warner, and Robert Weisberg; and for
    Texas Justice Foundation by Clayton Trotter.

   VOTES/OUTCOME (5-4): REHNQUIST, C. J., delivered opinion of Court, in which
    concurring opinion, in which O'CONNOR. THOMAS filed concurring opinion.
    STEVENS and SOUTER dissenting opinions. BREYER a dissenting opinion in which

   STATUTE IN QUESTION: Gun Free School Zones Act of 1990, which forbids "any
    individual knowingly to possess a firearm at a place that [he] knows . . . is a school
    zone," 18 USC§ 922 (q)(1)(A).

   CONSTITUTIONAL PROVISIONS: Interstate Commerce Clause, Tenth

   OPINION FOR COURT (Rehnquist, CJ):
   (1) Though Court has upheld wide variety of congressional acts regulating
    intrastate economic activity substantially affected interstate commerce, possession
    of gun in local school zone is not economic activity that might through repetition
    elsewhere have such a substantial effect on interstate commerce. Sec 922(q) is
    criminal statute by its terms has nothing to do with "commerce" or any sort of
    economic enterprise, however broadly defined.
   (2) Nor is it essential a part of larger regulation of economic activity, in which
    regulatory scheme is undercut unless intrastate activity were regulated. Cannot
    sustain under Court's cases upholding regs of activities arise out of or are
    connected with commercial transactions which, in aggregate, substantially affect
    interstate commerce. Compare with Wickard v. Filburn.
    (3) §922(q) contains no jurisdictional element to ensure through case by case inquiry
    that firearms possession in question has requisite nexus with interstate commerce.
    Lopez was local student at local school; no indication he had recently moved in
    interstate commerce and no requirement that possession of firearm have any concrete
    tie to interstate commerce.
   (4) To uphold US‘s contention that §922(q) justified because firearms possession
    in local school zone substantially affects interstate commerce would require Court
    to pile inference upon inference in manner that lead toward converting

    congressional Commerce Clause authority to general police power of sort held
    only by States.

   DIFFERENT VIEW (Breyer, in dissent): I apply three basic principles of Commerce
    Clause interpretation. First, the power to "regulate Commerce . . . among the several
    States," U. S. Const., Art. I, § 8, cl. 3, encompasses the power to regulate local
    activities insofar as they significantly affect interstate commerce. . . . Second, in
    determining whether a local activity will likely have a significant effect upon
    interstate commerce, a court must consider, not the effect of an individual act (a
    single instance of gun possession), but rather the cumulative effect of all similar
    instances (i.e., the effect of all guns possessed in or near schools).
   . . . . Third, the Constitution requires us to judge connection between regulated
    activity and interstate commerce, not directly, but at one remove. Courts must give
    Congress degree of leeway in determining existence of significant factual connection
    between regulated activity and interstate commerce--both because Constitution
    delegates commerce power directly to Congress and because determination requires
    an empirical judgment of kind legislature is more likely than court to make with
    accuracy…. Traditional words "rational basis" capture this leeway. . . . (Q)uestion
    before us . . . is not whether "regulated activity sufficiently affected interstate
    commerce," but, rather, whether Congress could have had "a rational basis"
   The only question, then, is whether the latter threat is (to use the majority's
    terminology) "substantial." And, the evidence of (1) the extent of the gun related
    violence problem, see supra, at 5, (2) the extent of the resulting negative effect on
    classroom learning, see supra, at 5-6, and (3) the extent of the consequent negative
    commercial effects, see supra, at 6-9, when taken together, indicate a threat to trade
    and commerce that is "substantial." At the very least, Congress could rationally have
    concluded that the links are "substantial."

   Congress could have found that gun related violence near classroom poses serious
    economic threat (1) to consequently inadequately educated workers who must
    endure low paying jobs, and (2) to communities and businesses that might otherwise
    gain, from well educated work force, an important commercial advantage of kind
    that location near a railhead or harbor provided in the past. Congress might also
    have found these threats to be no different in kind from other threats Court has
    found within commerce power, such as the threat that loan sharking poses to the
    "funds" of "numerous localities," Perez v. United States, and that unfair labor practices
    pose to instrumentalities of commerce, see Consolidated Edison Co. v. NLRB, (1938).
   Congress has written that "the occurrence of violent crime in school zones" has
    brought about a "decline in the quality of education" that "has an adverse impact on
    interstate commerce and the foreign commerce of the United States." 18 U. S. C. A.
    §§922(q)(1)(F), (G) (Nov. 1994 Supp.). The violence related facts, the educational facts,
    and the economic facts, taken together, make this conclusion rational.

United States v. Morrison et al.
   Violence Against Women Act of 1994 (42 USCA § 13981) "A person (including a
    person who acts under color of any statute, ordinance, regulation, custom, or usage
    of any State) who commits a crime of violence motivated by gender … shall be liable
    to the party injured, in an action for the recovery of compensatory and punitive
    damages, injunctive and declaratory relief, and such other relief as a court may deem
    appropriate . . . ."

529 U.S. 598 (2000)
   FACTS: Challenge to Violence Against Women Act of 1994 and provisions for
    Section 1983 civil rights suits. Brzonkala, VPISU undergraduate, accused two
    football players of rape. Sued them under VAWA 1994. Lost in USDC WDVA. CA4
    reversed and then En Banc CA4 reversed panel and invalidated the VAWA 1994 on
    ground that Congress constitutional authority to enact section 13981‘s civil remedy.

   VOTING (5-4): Rehnquist, C. J., opinion of the Court, in which O‘Connor, Scalia,
    Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J.,
    filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer,
    J., filed a dissenting opinion, in which Stevens, J., joined, and in which Souter and
    Ginsburg, JJ., joined as to Part I—A.

   OPINION FOR COURT (Rehnquist, CJ):
   (1) In Lopez, (1) §922(q) was ―a criminal statute that by its terms has nothing to do
    with ‗commerce‘ or any sort of economic enterprise, however broadly one might
    define those terms.‖ Reviewing our case law, noted that ―we have upheld a wide
    variety of congressional Acts regulating intrastate economic activity where we have
    concluded that the activity substantially affected interstate commerce.‖ Where
    economic activity substantially affects interstate commerce, legislation regulating that
    activity will be sustained.‖
   (2) We noted that neither §922(q) ― ‗nor its legislative history contain[s] express
    congressional findings regarding the effects upon interstate commerce of gun
    possession in a school zone.‘ ‖ While ―Congress normally is not required to make
    formal findings as to the substantial burdens that an activity has on interstate
    commerce,‖ the existence of such findings may ―enable us to evaluate the legislative
    judgment that the activity in question substantially affect[s] interstate commerce,
    even though no such substantial effect [is] visible to the naked eye.‖
   (3) Finally, our decision in Lopez rested in part on fact that link between gun
    possession and a substantial effect on interstate commerce was attenuated . . . . We
    rejected these ―costs of crime‖ and ―national productivity‖ arguments because they
    would permit Congress to ―regulate not only all violent crime, but all activities that
    might lead to violent crime, regardless of how tenuously they relate to interstate

    (4) The second consideration we found important in analyzing §922(q) was that
    statute contained ―no express jurisdictional element which might limit its reach to a
    discrete set of firearm possessions that additionally have an explicit connection with
    or effect on interstate commerce.‖ Such a jurisdictional element may establish that
    the enactment is in pursuance of Congress‘ regulation of interstate commerce.

   (5) In contrast with the lack of congressional findings that we faced in Lopez, §13981
    is supported by numerous findings regarding the serious impact that gender-
    motivated violence has on victims and their families. But the existence of
    congressional findings is not sufficient, by itself, to sustain the constitutionality of
    Commerce Clause legislation. . . . ― ‗[w]hether particular operations affect interstate
    commerce sufficiently to come under the constitutional power of Congress to
    regulate them is ultimately a judicial rather than a legislative question, and can be
    settled finally only by this Court.‘
    (6) Here, Congress‘ findings are substantially weakened because they rely so heavily
    on a method of reasoning that we have already rejected as unworkable if we are to
    maintain the Constitution‘s enumeration of powers. Congress found that gender-
    motivated violence affects interstate commerce ―by deterring potential victims from
    traveling interstate, from engaging in employment in interstate business, and from
    transacting with business, and in places involved in interstate commerce; … by
    diminishing national productivity, increasing medical and other costs, and
    decreasing the supply of and the demand for interstate products.‖
    (7) Given these findings and petitioners‘ arguments, the concern that we expressed
    in Lopez that Congress might use the Commerce Clause to completely obliterate the
    Constitution‘s distinction between national and local authority seems well founded.

Gonzalez v. Raich, 545 U.S. 1 (2005)
   FACTS: California became first State to authorize limited use of marijuana for
    medicinal purposes -- 1996, voters passed Proposition 215, codified as
    Compassionate Use Act of 1996 Raich, et al., sought injunction against enforcement
    of CSA. Question presented case is whether power vested in Congress by Article I,
    §8, ―[t]o make all Laws which shall be necessary and proper for carrying into
    Execution‖ its authority to ―regulate Commerce with foreign Nations, and among the
    several States‖ includes power to prohibit local cultivation and use of marijuana in
    compliance with California law.
   Angel Raich and Diane Monson, California residents, suffer from various serious
    medical conditions and have used medical marijuana under terms of Compassionate
    Use Act. Treated by licensed, board-certified doctors, who have concluded, after
    prescribing host of conventional medicines on respondents‘ conditions and
    associated symptoms, marijuana is only drug available that provides effective
    treatment. Both have used marijuana as medication for several years pursuant to

    their doctors‘ recommendation, and both rely heavily on cannabis to function on a
    daily basis. Indeed, Raich‘s physician believes that forgoing cannabis treatments
    would certainly cause Raich excruciating pain and could prove fatal.
   Respondent Monson cultivates her own marijuana, and ingests drug in variety of
    ways including smoking and using a vaporizer. Respondent Raich, by contrast, is
    unable to cultivate her own, and thus relies on two caregivers, litigating as ―John
    Does,‖ to provide her with locally grown marijuana at no charge. These caregivers
    also process cannabis into hashish or keif, and Raich herself processes some of
    marijuana into oils, balms, and foods for consumption.
   On August 15, 2002, county deputy sheriffs and agents from Drug Enforcement
    Administration (DEA) came to Monson‘s home. After thorough investigation, county
    officials concluded that her use of marijuana was entirely lawful as a matter of
    California law.

   After 3-hour standoff, federal agents seized and destroyed all six cannabis plants.
   Respondents brought action against AG of US and DEA seeking injunctive and
    declaratory relief prohibiting the enforcement of Controlled Substances Act (CSA), 84
    Stat. 1242, to extent it prevents them from possessing, obtaining, or manufacturing
    cannabis for personal medical use

   FEDERAL DRUG LAW: To consolidate various laws, provide meaningful
    regulation over legitimate sources of drugs to prevent diversion into illegal channels,
    and strengthen law enforcement v international and interstate drug trafficking,
    Congress enacted Comprehensive Drug Abuse Prevention and Control Act of 1970,
    Title II CSA. To meet goals, Congress devised regulatory system making unlawful to
    manufacture, distribute, dispense, or possess any controlled substance except as
    authorized by CSA. Controlled substances classified into five schedules, based on
    accepted medical uses, potential for abuse, and psychological and physical effects.
    Marijuana classified Schedule I substance, based
   FEDERAL DRUG LAW: on high potential for abuse, no accepted medical use, and
    no accepted safety for medically supervised treatment. Classification renders
    manufacture, distribution, or possession of marijuana a criminal offense.

   VOTES: Stevens, J., delivered opinion of Court, joined by Kennedy, Souter,
    Ginsburg, and Breyer, JJ. Scalia, J., filed opinion concurring in the judgment.
    O‘Connor, J., filed dissenting opinion, joined by Rehnquist, C. J., and Thomas, J., as to
    all but Part III. Thomas, J., filed a dissenting opinion.

   STATUTES AT ISSUE: Comprehensive Drug Abuse Prevention and Control Act of
    1970, Title II CSA. California‘s Prop 215, Compassionate Use Act of 1996.

   CONSTITUTIONAL PROVISIONS: Commerce Clause, Necessary and Proper

   COUNSEL: Acting SG Paul Clement, for US Petitioners. Randy E. Barnett for
    respondents. Briefs amici curiae, for reversal, Community Rights Counsel, Drug Free
    America Foundation, Inc. et al.; Robert L. DuPont, MD. et al.; US Representative
    Mark E Souder, et al. For affirmance, State of Alabama, et al.; State of California, et al.;
    California Nurses Association, et al.; Cato Institute; Constitutional Law Scholars;
    Institute for Justice; Leukemia and Lymphoma Society et al.; Lymphoma Foundation
    of America et al.; National Organization for the Reform of Marijuana Laws et al.
    Briefs also filed by Pacific Legal Foundation and Reason Foundation.

   OPINION OF COURT (Stevens, J): (1) Question presented case is whether power
    vested in Congress by Article I, §8, ―[t]o make all Laws which shall be necessary and
    proper for carrying into Execution‖ its authority to ―regulate Commerce with foreign
    Nations, and among the several States‖ includes power to prohibit local cultivation
    and use of marijuana in compliance with California law
   (2) Case is made difficult by respondents‘ strong arguments that will suffer
    irreparable harm because, despite congressional finding to contrary, marijuana does
    have valid therapeutic purposes. Question before SCT, however, is not whether
    wise to enforce statute in these circumstances; rather, whether Congress‘ power to
    regulate interstate markets for medicinal substances encompasses portions of those
    markets supplied with drugs produced and consumed locally. Well-settled law
    controls answer. CSA is valid exercise of federal power, even as applied to
    ―troubling facts of this case.‖

   (3) Most early 19th commerce decisions dealt with state discrimination against
    interstate commerce. Then, in response to rapid industrial development and
    increasingly interdependent national economy, Congress ―ushered in a new era of
    federal regulation under the commerce power,‖ beginning with the Interstate
    Commerce Act in 1887, and Sherman Antitrust Act in 1890.

   (4) Cases decided during ―new era,‖ which now spans more than century, have
    identified three general categories of regulation in which Congress is authorized to
    engage under its commerce power. First, Congress can regulate the channels of
    interstate commerce. Perez v. United States (1971). Second, Congress has authority to
    regulate and protect the instrumentalities of interstate commerce, and persons or
    things in interstate commerce. Ibid. Third, Congress has the power to regulate
    activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin
    Steel Corp. (1937). Only the third category is implicated in the case at hand.
    (5) When Congress decides that ― ‗total incidence‘ ‖of practice poses threat to
    national market, may regulate entire class. Perez, 402 U.S. (―[W]hen it is necessary in
    order to prevent an evil to make the law embrace more than the precise thing to be
    prevented it may do so‖)). SCT has reiterated that when ― ‗a general regulatory
    statute bears a substantial relation to commerce, the de minimis character of
    individual instances arising under that statute is of no consequence.‘ ‖ E.g., Lopez.

   (6) Wickard establishes that Congress can regulate purely intrastate activity that is not
    itself ―commercial,‖ is not produced for sale, if concludes that failure to regulate that
    class of activity would undercut regulation of interstate market in that commodity.
    Similarities between this case and Wickard striking. Like farmer in Wickard,
    respondents are cultivating, for home consumption, a fungible commodity for which
    there is established, albeit illegal, interstate market. Here too, Congress had rational
    basis for concluding that leaving home-consumed marijuana outside federal control
    would similarly affect price and market conditions

   (7) Here too Congress had rational basis for concluding that leaving home-consumed
    marijuana outside federal control would similarly affect price and market conditions.
    Diversion of homegrown marijuana tends to frustrate federal interest in eliminating
    commercial transactions in interstate market in their entirety. In both cases,
    regulation is squarely within Congress‘ commerce power because production of
    commodity meant for home consumption, be it wheat or marijuana, has substantial
    effect on supply and demand in national market for that commodity
   (8) Respondents suggest Wickard differs from this case in three respects: (1)
    Agricultural Adjustment Act, unlike CSA, exempted small farming operations; (2)
    Wickard involved a ―quintessential economic activity‖–a commercial farm–whereas
    respondents do not sell marijuana; and (3) Wickard record made it clear that
    aggregate production of wheat for use on farms had significant impact on market
    prices. Those differences, though factually accurate, do not diminish precedential
    force of Wickard’s reasoning.
   (9) That Wickard‘s own impact on market was ―trivial by itself ‖not sufficient to
    remove him from scope of federal regulation. That Sec of Ag chose to exempt smaller
    farms does not speak to power to regulate all those whose aggregated production
    was significant—and did not play role in Wickard. Though Wickard was commercial
    farmer, Court did not treat cultivation of wheat for home consumption as part of his
    commercial farming. Record in Wickard case itself established causal connection
    between production for local use and the national market; we have before us findings
    by Congress to same effect.
   (10) Unlike laws in Lopez and Morrison, activities regulated by CSA are
    quintessentially economic. CSA regulates production, distribution, and consumption
    of commodities for which there is established, and lucrative, interstate market.
    Prohibiting intrastate possession or manufacture of an article of commerce is a
    rational (and commonly utilized) means of regulating commerce in that product

   OTHER VIEWS (O‘Connor, with Rehnquist and Thomas, JJ. Scalia, concurring.)

Does Congress, via Commerce Clause, have powers similar to state
“police power”?
   Champion v. Ames (1903), lottery tickets
   Hippolite Egg Co v. United States (1911), Meat                Inspection Act and
    Pure Food and Drug Act
   Hoke v. United States (1913), Mann Act, ―white                slave trade‖
   Hammer v. Dagenhart (1918), child labor. No.

CHAMPION v. JOHN C. AMES, United States Marshal,                          188 U.S. 321 (1903).
   FACTS: Appeal from order of US Circ Court NDIll dismissing writ of habeas
    corpus. Champion said was restrained of liberty by Ames in violation of
    Constitution and laws of US. Accused in indictment in USDC ND Texas for
    conspiracy under 5440 of Rev Stats: 'if two or more persons conspire either to
    commit any offense against the US, or to defraud US in any manner or for any
    purpose, and one or more of such parties do any act to effect object of conspiracy, all
    parties to such conspiracy shall be liable to penalty of not less than one thousand
    dollars and not more than ten thousand dollars, and to imprisonment not more than
    two years.'
   Champion was arrested at Chicago under a warrant based upon a complaint in
    writing, under oath, charging him with conspiring with others, at Dallas, in the
    northern district of Texas, to commit the offense in act of 1895; object of arrest was to
    compel appearance in US court in Texas to answer indictment.

   Federal lottery act: ―That any person who shall cause to be brought within United
    States from abroad, for purpose of disposing of same, or deposited in or carried by
    mails of US or carried from one state to another in US, any paper, certificate, or
    instrument purporting to be or represent a ticket, chance, share, or interest in or
    dependent upon the event of a lottery, so-called gift concert, or similar enterprise,
    offering prizes dependent upon lot or chance, or shall cause any advertisement of
    such lottery, so-called gift concert, or similar enterprise, offering prizes dependent
    upon lot or chance, to be brought into US, or deposited in or carried by mails of US,
    or transferred from one state to another in same, shall be punishable in [for] first
    offense by imprisonment for not more than two years, or by fine of not more than $1,
    000, or both, and in second and after offenses by such imprisonment only.‖

   Champion allegedly caused to be carried from one state to another in United States
    from Dallas, Texas, to Fresno, papers, certificates, and instruments purporting to be
    and representing tickets, chances, shares, and interests in and dependent upon event
    of a lottery, offering prizes dependent upon lot and chance. Monthly drawing of
    Pan-American Lottery Company purported to draw monthly at Asuncion, Paraguay,

    Pan-American Lottery Company purported to be an enterprise offering prizes
    defendent upon lot and chance. Capital prize $32,000.

   VOTES: Harlan, J., delivered Opinion of Court, joined by Brown, White, McKenna,
    and Holmes, JJ. Fuller, CJ, dissented, joined by Brewer, Shiras, and Peckham, JJ.

   COUNSEL: Messrs. Moritz Rosenthal, William D. Guthrie, and Joseph B. David for
    appellant on original argument. Mr. William D. Guthrie for appellant on
    rearguments. Assistant Attorney General Beck for appellee.

   STATUTE AT ISSUE: 1st section of act of Congress of March 2d, 1895, chap. 191,
    entitled 'An Act for the Suppression of Lottery Traffic through National and
    Interstate Commerce and the Postal Service, Subject to the Jurisdiction and Laws of
    the United States.' 28 Stat. at L. 963, U. S. Comp. Stat. 1901, p. 3178.

   CONSITUTIONAL PROVISIONS: Interstate Commerce Clause, Tenth
    Amendment ―Police Powers‖.

   OPINION FOR COURT (Harlan, J): (1) Meaning of ‗commerce' used in Constitution
    not defined. It undoubtedly includes carrying from one state to another by
    independent carriers of things or commodities that are ordinary subjects of traffic,
    and which have in themselves recognized value in money. But does not commerce
    among the several states include something more? Does carrying from one state to
    another by independent carriers of lottery tickets that entitle holder to payment of
    certain amount of money also constitute commerce among states?

    (2) Cases show commerce among states embraces navigation, intercourse,
    communication, traffic, the transit of persons, and transmission of messages by
    telegraph. Power to regulate commerce among several states vested in Congress as
    absolutely as would be in single government; power is plenary, complete in itself,
    and may be exerted by Congress to its utmost extent, subject only to limitations
    Constitution imposes. Congress has large discretion in determining character of
    regulations - - not to be controlled by courts because, in their opinion, regulations
    may not be best most effective

    (3) Court is of opinion that lottery tickets are subjects of traffic, and therefore are
    subjects of commerce; and regulation of carriage of such tickets from state to state, at
    least by independent carriers, is regulation of commerce among several states.
    (4) If a state, considering legislation for suppression of lotteries within own limits,
    may properly consider evils that inhere in raising of money, why may not Congress,
    invested with power to regulate commerce among several states, provide that such
    commerce shall not be polluted by carrying of lottery tickets from one state to
    another? Congress has plenary power over interstate commerce. Congress has not
    sought to regulate lotteries carried on exclusively within states.

   DIFFERENT VIEWS (Fuller, CJ, dissent): (1) power of state to impose restraints and
    burdens on persons and property in conservation and promotion of public health,
    good order, and prosperity is power originally and always belonging to states, not
    surrendered by them to general government, nor directly restrained by Constitution
    of US, and essentially exclusive, and suppression of lotteries as a harmful business
    falls within this power, commonly called police.

   (2) US argues: because Congress empowered to regulate commerce between several
    states, it may suppress lotteries by prohibiting carriage of lottery matter. Congress
    may make all laws necessary and proper for carrying powers granted to it into
    execution. Yes, an act prohibiting carriage of lottery matter would be necessary and
    proper to execution of power to suppress lotteries; but that power belongs to states
    and not Congress. Congress not entrusted with general police power; defeat 10th
    Amend, 'powers not delegated to the US by Constitution, nor prohibited by it to the
    states, are reserved to the states respectively, or to the people.'

   (3) Prior laws forbidding transmission of lottery matter by mails was sustained based
    on power vested in Congress to establish post offices and post roads, embraced
    regulation of entire postal system; thereunder Congress might designate what might
    be carried in tmails and what excluded. Re Rapier.
   (4) Carriage of lottery tickets from one state to another commercial intercourse?
    Lottery ticket said to create contractual relations and to furnish means of enforcing a
    contract right. So do insurance policies; contingent in nature; but issuing of fire,
    marine, and life insurance policies in one state and sending them to another to be
    there delivered to insured on payment of premium is not interstate commerce. Paul v.

Heart of Atlanta Motel v. United States,                 379 US 241 (1964), USDC ND
Alabama (3 Judge DC), Appeal
 FACTS: Appellant, owner of large motel in Atlanta, Georgia, restricts its clientele to
  white persons, three-fourths of whom are transient interstate travelers, sued for
  declaratory relief and to enjoin enforcement of Civil Rights Act of 1964, contending
  that prohibition of racial discrimination in places of public accommodation affecting
  commerce exceeded Congress' powers under Commerce Clause and violated other
  parts of the Constitution. Three-judge District Court upheld constitutionality of Title
  II, 201 (a), (b) (1) and (c) (1), and permanently enjoined appellant from refusing to
  accommodate Negro guests for racial reasons.

   Title II, Civil Rights Act of 1964, outlawed discrimination based on race, color,
    religion, or national origin in places of public accommodation operating in or
    affecting interstate commerce. Covered inns, hotels, motels, lodgings; restaurants,
    cafeterias; motion picture theatres; any facility within covered accommodation.

   COUNSEL: Moreton Rolleston, Jr., argued for and filed a brief for appellant.
    Solicitor General Cox argued for US et al., joined on brief byAssistant Attorney
    General Marshall, Philip B. Heymann and Harold H. Greene. Briefs of amici curiae,
    urging reversal, State of Florida and the Commonwealth of Virginia. Briefs of amici
    curiae, urging affirmance, the State of California; the Commonwealth of
    Massachusetts; and the State of New York.

   VOTES: (9-0). Clark, J., delivered Opinion of the Court, joined by Black, Brennan,
    Douglas, Goldberg, Harlan, Stewart, Warren, White. Douglas, Goldberg wrote
    concurring opinions.

   STATUTE AT ISSUE: Title II, Civil Rights Act of 1964.

   CONSTITUTIONAL PROVISION: Commerce Clause, necessary and proper
    clause, Right to travel. Does not rely on either 14th or 13th Amendment. Note The
    Civil Rights Cases (1883), treatment of comparable statute.

   OPINION OF COURT (Clark, J):
   (1) Title II of Civil Rights Act of 1964 is valid exercise of Congress' power under
    Commerce Clause as applied to public accommodation serving interstate travelers.
    Compare Civil Rights cases.
   (a) Interstate movement of persons is "commerce," concerns more than one State.
   (b) Protection of interstate commerce within regulatory power of Congress under
    Commerce Clause whether or not transportation of persons between States is
    (c) Congress' action in removing disruptive effect which it found racial
    discrimination has on interstate travel not invalidated because Congress also
    legislating against what it considered to be moral wrongs.
   (d) Congress had power to enact appropriate legislation re place of public
    accommodation such as appellant's motel even if it is assumed to be of a purely
    "local" character -- Congress' power over interstate commerce extends to regulation
    of local incidents which might have substantial and harmful effect upon commerce.

   (2) Prohibition in Title II of racial discrimination in public accommodations affecting
    commerce does not violate Fifth Amendment, not deprivation of property or liberty
    without due process of law.
   (3) Prohibition does not violate Thirteenth Amendment "involuntary servitude.―
   (4) Cites testimony, evidence before Congress on the impact of racial discrimination
    on the blacks, right to travel, flow of interstate commerce.
   (5) Cites evidence in record of HAM‘s closeness to interstate, high percentage of
    interstate customers, high percentage of interstate goods.

   DIFFERENT VIEWS (Douglas, Goldberg, JJ, wrote concurrences): Would have
    based constitutional validity on equal protection, right to travel, rather than on
    interstate commerce clause.

   PROBLEM: 14th applies to states, not to private action. Court required to define
    state action; in 1964, had been defined narrowly.

Cooley v. Board of Wardens of Philadelphia, 53 U.S. 299 (1852), Error,
Supreme Court PA

FACTS: Actions to recover half pilotage fees under 29th section of Act of Penn
Legislature, March 2, 1803. Plaintiff in error alleges Pennsylvania Supreme Court has
decided against right claimed by him under US Constitution, to be exempted from
payment of sums of money demanded, pursuant to state law because law contravenes
several provisions of Constitution.
 State Law: ―That every ship or vessel arriving from or bound to any foreign port or
  place, and every ship or vessel of the burden of seventy-five tons or more, sailing
  from or bound to any port not within the river Delaware, shall be obliged to receive a
  pilot. . . .‖

   US law: The act of Congress of the 7th of August, 1789, sect. 4, ―That all pilots in the
    bays, inlets, rivers, harbors, and ports of the United States shall continue to be
    regulated in conformity with the existing laws of the states, respectively, wherein
    such pilots may be, or with such laws as the states may respectively hereafter enact
    for the purpose, until further legislative provision shall be made by Congress.‖

   VOTE (8-1). Curtis, J., delivered Opinion for Court. McLean, J., delivered dissenting
    opinion. Daniel, J., delivered concurrence.
   STATUTES AT ISSUE: "An act to establish a Board of Wardens for the port of
    Philadelphia, and for the regulation of Pilots and Pilotages, &c.― and Act of Congress
    of August 7, 1789, sect. 4, on pilotage.

   CONSTITUTIONAL PROVISIONS: Commerce Clause, Tenth Amendment.

   OPINION FOR COURT (Curtis, J):
   (1) Power to regulate commerce includes regulation of navigation settled. Power to
    regulate navigation is power to prescribe rules in conformity with which navigation
    must be carried on. Extends to persons who conduct as well as to instruments used.
    First Congress passed laws requiring masters of ships and vessels of US to be citizens
    of US and established many rules for government and regulation of officers and

   (2) Did grant of commercial power to Congress per se deprive states of all power to
    regulate pilots? New question in Court. Grant in Constitution to Congress does not
    contain express terms to exclude states from exercising an authority over its subject
   (3) If excluded, must be because nature of power granted Congress requires that
    similar authority should not exist in states.
   (4) Nature and division of power depends. Whatever subjects of commerce power
    are in their nature national, or admit only of one uniform system or plan of
    regulation, may justly be said to be of such a nature as to require exclusive legislation
    by Congress.
   (5) Not true of laws for regulation of pilots and pilotage. US act of 1789 contains clear
    and authoritative declaration by First Congress that nature of subject is such that,
    until Congress finds it necessary to exert its power, should be left to state, that it is
    local and not national, is likely best provided for not by one system or plan of
    regulations, but by as many as legislative discretion of states see applicable to local
    peculiarities of ports.

   DIFFERENT VIEWS. McLean, J., dissent: Congress has exclusive power over
    pilotage laws. Why did Congress pass act of 1789 adopting pilot laws of states? Were
    state laws pre-Act under Constitution? If yes, Congress would not have adopted
    special act.
   Congress adopted pilot laws of states because was understood could have no force,
    as regulations of foreign commerce or of commerce among states, if not so adopted.
    By adoption made acts of Congress.
   Each state regulates commerce within its limits, not within range of federal powers.
    So far, and no farther, could effect have been given to pilot laws of states under
    Constitution. But laws only adopted "until further legislative provisions shall be
    made by Congress."

   Shows that Congress claimed whole commercial power on this subject by adopting
    pilot laws of states, making them acts of Congress, and also by declaring the
    adoption was only until Congress made some further legislative.

Southern Pacific RR Co. v. Arizona, 325 U.S. 761 (1945), Appeal, Supreme
Court of Arizona
   FACTS: Arizona Train Limit Law of May 16, 1912, Arizona Code Ann., 1039, § 69-
    119, made it unlawful for any person or corporation to operate within state a railroad
    train of more than fourteen passenger or seventy freight cars, and authorizes the state to
    recover a money penalty for each violation of the Act. Long trains, trains of more
    than fourteen passenger and more than seventy freight cars, standard practice over
    main lines of US railroads. In Arizona, approximately 93% of freight traffic and 95%

    of passenger traffic is interstate. So Pac RR has to run 300 more rains in AZ than
    otherwise. Costs $1 mill year.

   VOTING(7-2). Stone, CJ., delivered Opinion for Court; Black, J., and Douglas,
    delivered dissenting opinions.

   STATUTE AT ISSUE: Arizona Train Limit Law (Arizona Code Ann., 1939, § 69-

   CONSTITUTIONAL PROVISIONS: Interstate commerce clause, Tenth
    Amendment, state police powers.

   COUNSEL: Burton Mason and J. Carter Fort argued, with Cleon T. Knapp and C. W.
    Durbrow on brief, for appellant. Harold N. McLaughlin and Harold C. Heiss argued,
    with Harold Conway, AG Arizona, Earl Anderson, Asst AG, and Charles L. Strouss
    on brief, for appellee.
   Robert L. Stern, with SG Fahy and Carolyn R. Just on brief, for United States, as
    amicus curiae, for reversal.
   J. Carter Fort and Thomas Reed Powell filed brief on behalf of Association of
    American Railroads, as amicus curiae, for reversal.

   (1) Commerce Clause -- or ICC rules, ICC or other statutes do not curtail or supersede
    state power to regulate length of trains -– of itself.
   (2) Court will not assume Congress, in enacting law within its constitutional
    authority over interstate commerce, intends to strike down a state law designed to
    protect health and safety of public unless it is clearly manifested. Or unless law in
    terms or practice conflicts or infringes policy.
   (3) Arizona Train Limit Law making it unlawful to operate within State passenger
    train of more than fourteen cars or freight train of more than seventy cars, as applied
    to interstate trains, violates the commerce clause.
   (4) Commerce clause, even without congressional legislation, protects against state
    legislation which interferes with national commerce; in such cases, where Congress
    has not acted, Court, not state legislature, is final arbiter of competing demands of
    state and national interests.

    (5) State regulation, admittedly obstructs interstate train operation, has adverse
    effect on transportation efficiency and economy, beyond what is essential for safety.
    Facts indicate will not lesson danger of accident. Interest of nation in adequate,
    economical and efficient railway transportation outweighs state interests.
   (6) National interest in free flow of interstate commerce and freedom from local
    restraints in matters requiring uniformity of regulation are safeguarded by the
    commerce clause from state interference.

   (7) Thus, Court distinguished South Carolina Highway Dept. v. Barnwell Bros., 303 U.S.

   DIFFERENT VIEWPOINTS (Black, J. dissent): Evidence at various hearings
    substantiates report of Senate Committee re danger slack movement greater in long
    than in short trains. Maybe offsetting dangers possible in short trains. But balancing
    of these probabilities not matter for judges. Representatives elected make their laws,
    rather than judges appointed to interpret those laws, can best determine policies
    which govern people.

   DIFFERENT VIEWPOINTS (Douglas, J, dissent): Has expressed doubts whether
    courts should intervene in situations like present and strike down state legislation on
    grounds it burdens interstate commerce. View has been that courts should intervene
    only where state legislation discriminated against interstate commerce or was out of
    harmony with Congressional acts. Particularly appropriate here because Congress
    has given Interstate Commerce Commission broad powers of regulation over
    interstate carriers

South Carolina Highway Dept. v. Barnwell Bros. (1938), Stone.
Distinguished in Southern Pacific RR
 (1) Power of state to regulate weight and width of motor cars passing interstate over
  highways, legislative field over which state has far more extensive control than over
  interstate railroads. Few subjects of state regulation affecting interstate commerce so
  peculiarly of local concern as use of state's highways. Local highways built, owned
  and maintained by state or municipal subdivisions. State responsible for safe and
  economical administration.

   (2) Regulations affecting safety of use must be applied alike intrastate and interstate
    traffic. That affect alike shippers in interstate and intrastate commerce, within and
    without state, safeguards against abuse. Regulation like quarantine measures, game
    laws, and local regulations of rivers, harbors, piers, and docks, in which state has
    exceptional scope for exercise of regulatory power – and, when Congress has not
    acted, sustained though they materially interfere with interstate commerce

Granholm v. Heald, 544 US 460 (2005), USCA6
   FACTS: Challenge to state laws discriminating against direct sales of alcoholic
    beverages, here mostly wineries. Michigan‘s three-tiered system forced producers to
    go through its system and made it illegal, for example, for Michigan residents to
    order wine from out of state. No direct shipping to consumers permitted. But there
    is an exception for Michigan‘s approximately 40 in-state wineries, which are eligible

    for ―wine maker‖ licenses that allow direct shipment to in-state consumers. Michigan
    residents brought suit against state officials in USDC ED Mich. Domaine Alfred, San
    Luis Obispo winery, joined suit. Michigan Beer & Wine Wholesalers intervened as a
    defendant. State and wholesalers argued ban on direct shipment from out-of-state
    wineries is valid under §2 of the Twenty-first Amendment

   STATUTE AT ISSUE: Michigan‘s three-tier system. Producers/distillers alcoholic
    beverages, located in or out of state, may sell only to licensed in-state wholesalers.
    Mich. Comp. Laws Ann. §§436.1109(1), 436.1305, 436.1403, 436.1607; Mich. Admin.
    Code Rules 436.1705 (1990), 436.1719 (2000). Wholesalers may sell only to in-state
    retailers. Mich. Comp. Laws Ann. §§436.1113(7), 436.1607(1). Licensed retailers final
    link, selling alcoholic beverages to consumers at retail locations and, subject to certain
    restrictions, through home delivery.

   CONSTITUTIONAL PROVISIONS: Interstate commerce clause, or ―dormant
    commerce clause‖; Section 2, 21st Amendment, ―The Transportation of importation
    into any State, Territory, or possession of the United States for delivery or use therein
    of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. “

   VOTE (5-4). Kennedy, J., delivered Opinion of Court, which Scalia, Souter, Ginsburg,
    and Breyer, JJ., joined. Stevens, J., filed dissenting opinion, which O‘Connor, J.,
    joined. Thomas, J., filed dissenting opinion, which Rehnquist, C. J., and Stevens and
    O‘Connor, JJ., joined.

   OPINION FOR COURT (Kennedy, J):
   (1) Court has long held, in all but narrowest circumstances, state laws violate
    Commerce Clause if mandate ―differential treatment of in-state and out-of-state
    economic interests that benefits the former and burdens the latter.‖

   (2) Michigan system‘s discriminatory character is obvious. Allows in-state wineries
    to ship directly to consumers, subject only to licensing requirement, but out-of-state
    wineries, even if licensed, must go through wholesaler and retailer. Resulting price
    differential, plus possible inability to secure wholesaler for small shipments,
    effectively bars small wineries from Michigan‘s market.
    (3) Section 2 of Twenty-first Amendment does not allow States to regulate direct
    shipment of wine on terms that discriminate in favor of in-state producers.
    Inconsistent with Court‘s precedents and Amendment‘s history.
     (3a) Court invalidated many state liquor regulations before the 18 th‘s ratification,

       finding either that the Commerce Clause prevented States from discriminating
       against imported liquor or that States could not pass facially neutral laws that
       placed an impermissible burden on interstate commerce
     (3b) 21st Amendment‘s aim to allow States to maintain an effective and uniform

       system for controlling liquor by regulating transportation, importation, and use.
       Did not give States authority to pass non-uniform laws to discriminate against out-
       of-state goods, a privilege they never enjoyed. Cases decided soon after 21st‘s

    ratification did not take account of underlying history and were inconsistent with
    this view
   (3c) Court has held, in modern §2 cases, that (1) state laws violating other
    provisions of Constitution not saved by Twenty-first Amendment, (2) §2 does
    not abrogate Congress’ Commerce Clause powers re liquor, (3) most
    relevant here, state regulation of alcohol is limited by Commerce Clause’s
    nondiscrimination principle.


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