Tuesday, October 17, 2017
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Commerce Clause


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At the creation of our Constitution, the federal government was initially intended to be smaller than it is today. Instead of it having most of the power, it was supposed to be more of a collaboration with the states, a balance of power.

This shift in power has been partly due to the Commerce Clause. Under Article I, Section VIII of the Constitution, “The Congress shall have power…to regulate commerce with foreign nations, and among the several states, and with the Indian tribes…”

There are two ways to interpret the Constitution: narrowly and broadly. While neither can be considered the ‘wrong’ interpretations, they produce drastically different effects. If the Commerce Clause was to be interpreted narrowly, it would only allow Congress to regulate the flow of goods, and how they flow, between intranational and international bodies.

However, in the liberal interpretation, this clause has been construed to allow for a wide variety of powers. As long as interstate or international commerce applies, and the law is ‘necessary and proper’, the Commerce Clause can be utilized. Furthermore, the goods can themselves be regulated as long as they pass state lines.

Ever wonder why milk pasteurization is required? Commerce Clause. It is necessary and proper to prevent the transmission of milk borne pathogens over state lines during commerce. Although the manufacture of goods is intrastate, when the goods are transported, they may go interstate, and therefore the government can ban goods not meeting the standards. Minimum wage and working hour maximums? Commerce Clause. Congress was allowed to restrict the flow of goods between states if they didn’t meet these standards, effectively creating these standards. Even gun-free zones were initially supported by the Commerce Clause. Although this support was struck down by U.S. v. Lopez (1995), it initially reasoned that the possession of a firearm in a school zone would lead to violent activity, affecting general economic conditions.

This clause has been applied to a variety of other sectors, vastly increasing the government’s power, and will probably help it to grow and grow.

Note: In Gibbons v. Ogden (1824), Gibbons was given a federal license to run a ferry between New York and New Jersey. Ogden was given a monopoly on those waters by New York. The question was whether the business of ferrying fell under the Commerce Clause, and then if Congress could regulate the ferrying business. Decided for Gibbons, the precedent set allowed for the intrastate regulation of commerce as long as it was tied to a larger interstate scheme. This is the backing for many laws using the Commerce Clause as a justification, as no one does commerce directly on state lines.

Sources:

https://www.law.cornell.edu/wex/commerce_clause

http://www.heritage.org/the-constitution/report/commerce-commerce-everywhere-the-uses-and-abuses-the-commerce-clause

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/federalcommercepower.html

https://www.law.cornell.edu/constitution/articlei#section8

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3461852/