commerce

Commerce Clause – Eileen Li

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Context

In 1781, five years after the colonies became free from British rule, the Articles of Confederation were implemented. This document was an agreement between the 13 states that attempted to establish the functions of the national government. The Articles allowed each state to have power over their own trade. They worked independently and competitively against each other, and even established trade barriers. Congress was prohibited from regulating any commerce, so the rising inflation rates could not be controlled, and America’s economy grew weak. In response to these economic problems, a convention was held in 1789. 

 

Common interpretation

The Commerce Clause was formed here, which gave Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause is commonly interpreted as giving Congress power to regulate international and interstate commerce, and trade with Indian Tribes, as well as prohibit states from interfering with Congress’ decisions. 

 

Matters of Debate

However, the undefined meanings of the words “to regulate”, “commerce” and “among the several States” make this clause open to interpretation. For example, in the case of Gibbons v. Ogden, the word “commerce” was argued to include people, not just goods. Thomas Gibbons, given permission by the federal government to operate steamboats between New York City and the New Jersey coast, sued Aaron Ogden, who was backed up by the State of New York to do the same, after Gibbons was denied access to these waterways. In the end, the Court ruled in Gibbon’s favor. The argument was that the definition of “commerce” included the people carried in steamboats, so steamboats would be considered as commerce, and the powers of Congress from the Commerce Clause could be applied. The reasoning of Chief Justice Marshall was that “commerce” was not only buying and selling, but also intercourse and thus navigation. 

Another matter of debate was introduced in United States v. Darby, where the meanings of “to regulate” and “among the several States” were expanded. The FLSA (Fair Labor Standards Act) was passed in 1938, and set minimum wages, maximum hours, etc. Darby, a lumber manufacturer, was arrested after shipping lumber out of state while violating the FLSA. In this case, the Court reaffirmed this Act to be constitutional, which gave Congress the power to prohibit manufacturing goods inside states with the FLSA. Another reason why Congress was given this power was because intrastate commerce would affect interstate commerce, which the government was already in charge of by the Commerce Clause. Previously, the common interpretations of “to regulate” and “among the several States” led to Congress regulating commerce between two or more states. However, these meanings were expanded in the case of United States v. Darby, giving Congress the power to regulate interstate and now intrastate commerce.

 

Significance

The concepts of the Commerce Clause connect to some ideas of early modern enlightenment philosophers such as Rousseau, as they both emphasized the importance of a strong central government. Personally, I would not change this clause because I think this idea is extremely important. If Congress wasn’t in charge of states’ trade, the free market wouldn’t exist, and America’s economy would worsen.

Commerce Clause and Declare War Clause – Annika Maduraperuma

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The Articles of Confederation, the precursor to the Constitution created a weak federal government, giving too much autonomy and power to the states, upsetting the power balances. The Constitution sought to fix this, and in Article 1, the legislative branch is created, balancing and regulating state and federal power. Section 8, often called “the enumerated powers of congress” is thought of as a direct response to the problems of the Articles of Confederation.

The Commerce clause, Clause 3 of Article 1, Section 8, is commonly understood to display the power Congress has to regulate commerce and trade internally, externally, and with Native American tribes. This clause stops states from interfering or obstructing interstate commerce. The reach of the commerce clause has become increasingly expansive over time. In Gibbons v Ogden (1824), Chief Justice Marshall expanded the definition of commerce to intercourse, the dealings and discussions between groups or individuals at large. As time went on, other Supreme Court cases slowly defined that anything that ends in profit, and requires interstate movement in that process, can be federally regulated. After United States v. Darby (1941), Congress’ regulation was redefined to encompass any intrastate activities that affect interstate commerce. In Katzenbach v McClung (1964), the Court’s unanimous decision enforced the Civil Rights Act of 1964 and set the precedent that segregation interfered with interstate commerce because of its effect on transportation and business. This stopped McClung from refusing to serve African Americans and gave Congress the power to stop segregation.

The Declare War Clause, Clause 11 of Article 1, Section 8, grants Congress the sole power to declare war and commence hostilities. At the time of creation, it was meant to be a check on the President’s power. But, in the modern day, it is commonly misunderstood that war is declared by the President, as the powers of the Declare War clause and the President’s position as commander in chief of the armed forces blur. After the Gulf of Tonkin incident, President Johnson asked for and received a resolution from Congress allowing him to ensure international and Southeast Asian peace and US safety and prevent further aggression through any necessary means. This resolution served as grounds for the rest of the military action President Johnson and President Nixon oversaw during the Vietnam war, though a formal declaration of war was never decreed (1). Tension specifically rose between Congress and the President when Nixon secretly bombed Cambodia without congressional consent or oversight in 1970 (2). This led to the War Powers Resolution of 1973, which forced the President to report any use of armed forces to Congress within 48 hours, after which if Congress failed to authorize use of hostilities in the next 60 days, the President must terminate any action. While meant to limit executive power, it implicitly gives them a period of guaranteed action, continuing the battle over military checks and balances.

  1. National Archives, “Tonkin Gulf Resolution (1964),” National Archives, accessed June 1, 2023, https://www.archives.gov/milestone-documents/tonkin-gulf-resolution.

  2. Richard Nixon Presidential Library, “War Powers Resolution of 1973,” Richard Nixon Presidential Library, accessed June 1, 2023, https://www.nixonlibrary.gov/news/war-powers-resolution-1973#:~:text=Congress%20passed%20the%20War%20Powers,from%20Vietnam%20in%20early%201973.

Jason Joseph – The Commerce Clause and Declare War Clause

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Under the Articles of Confederation, states had the power to handle their commerce largely independently which hindered trade between states and hurt the overall economy. The Commerce Clause allowed Congress to centralize trade between nations, states, and Indian tribes. This increased trade and the movement of goods, bolstering the economy. In 1808, the first year it was authorized by the constitution to do so, Congress banned the importation of slaves because it fell under foreign commerce. This, as well as Gibbons v. Ogden (1824), provided a precedent for Congress to overrule state laws that pertained to interstate or foreign commerce. Katzenbach v. McClung (1964) was a case where McClung believed Congress had no power to integrate his restaurant. McClung was forced to integrate because his business fit the definition of interstate commerce and Congress therefore had authority over it. The Supreme Court ruled that segregation created limitations on African Americans who traveled to different states, falling under the Commerce Clause, allowing Congress to gain more authority over the states to end segregation. The definition of interstate commerce is highly contested with those wanting decreased government oversight pushing for the original definition of navigation and trade, and those wanting increased government oversight arguing for a broader interpretation. By leaving the meaning of interstate commerce broad it assures that as the circumstances in the United States change so too can the economic practices.

The Declare War clause gives Congress the sole power to wage war, commandeer citizens’ ships in times of war, and provide legislation over obtained territory. The framers intended the Declare War clause to serve as a check to the President’s military power. However, the framers also wanted The President to keep enough autonomy in order to respond to sudden attacks against the nation. In 1964, Congress authorized military support to defend the assets and allies the United States had in Southeast Asia. This led to the Vietnam War, an undeclared war,  where The President took actions that vastly expanded on Congress’ authorization, such as having a draft. When President Nixon approved a secret bombing in Cambodia during the war, Congress realized it needed increased power in foreign military conflicts. The War Powers Resolution of 1973, mandates that The President communicate with Congress before using force, and obtain approval from Congress for missions longer than 60 days. This is intended to allow Congress to control the military direction of the nation. On the contrary, this resolution gives The President 60 days of unauthorized action, which prior to the resolution The President did not have. As weapons’ capability for destruction grows, troops travel faster, and information is spread more rapidly, the devastation and lasting impact that can be accomplished in 60 days of conflict is increasing. Can military action that profoundly affects the entire United States and the well-being of other nations be entrusted to a single individual?

 

Bibliography

Barnett, Randy E. “Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Barnett, Randy E., and Andrew Koppelman. “The Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Denniston, Lyle. “Was the Vietnam War Unconstitutional?” National Constitution Center. Last modified September 20, 2017. Accessed May 30, 2023. https://constitutioncenter.org/blog/was-the-vietnam-war-unconstitutional.

 

Oyez. “Gibbons v. Ogden.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1789-1850/22us1.

 

———. “Katzenbach v. McClung.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1964/543.

 

Ramsay, Michael D., and Stephen I. Vladeck. “Declare War Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Richard Nixon Presidential Library and Museum. “War Powers Resolution of 1973.” Richard Nixon Presidential Library and Museum. Last modified July 27, 2021. Accessed May 31, 2023. https://www.nixonlibrary.gov/news/war-powers-resolution-1973#:~:text=The%20War%20Powers%20Resolution%20of,the%20executive%20branch’s%20power%20when.

 

Vladeck, Stephen I. “Congress’s Statutory Abdication of Its Declare War Power.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Kavi Bharara- The Commerce Clause

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The years following the declaration of independence and the adoption of the Constitution, marked incredible economic fragmentation and disorder among the 13 different states. The nation’s economy was deeply divided by the conflicting state legislations and trade policies/agreements, leading to a lack of cohesion and efficiency. Such economic turmoil and dissatisfaction voiced a need for changes to be implemented. 

Consequently, to address the intertwined economic and commercial challenges existing within states, the Commerce Clause was implemented into Article 1, section 8 of the Constitution. Essentially, the clause allows the United States Congress to regulate commercial activity and trade among states, foreign nations and Native American tribes. This shift of power to the central federal congress promotes a free market/enterprise among states and a unified framework for overseeing this interstate commerce. The clause also evidently creates a more level playing field among individual states, as it prohibits any regulations or laws at a state level that would interfere with national economic growth. Ever since its implementation back in 1789 however, the Commerce Clause has been subject to extensive interpretation and debate. The extent of congress’ ability to exercise such legislative power of state commerce, has been a part of an ongoing controversy, particularly in the context of conflicting Federalist/Anti Federalist ideals. As the framers never explicitly defined the word “commerce”, a wide-range of arguments and debates have ensued over what powers are exactly granted to congress. Some argue that the word reflects a narrow, limited definition of simply trade and exchange, while others claim it contains a more broad meaning of commercial and even social intercourses. While both interpretations have been argued, in our history, courts have generally adopted a border interpretation of the clause; for better or worse. Most notably, in the 1824 Supreme Court case Gibbons v. Ogden, the court ruled that Congress could regulate all interstate commerce and forbid any state legislation that would interfere with this power; an illustration of outright congressional power over states. How might this have sat with passionate anti-federalist thinkers who advocated for stronger state powers and were apprehensive of such a centralized federal power? In addition, a few years prior this, in 1808, the Commerce Clause was utilized to a broad extent when it gave Congress the power to abolish the slave trade with other nations; an example of the clause extending beyond economic matters to address significant social issues.   

It is important to note however, that the clause has also been witness to more narrow interpretations by the Supreme Court, particularly in a period between 1905 and 1907. During this period, courts explored the notion that the Commerce Clause did not grant Congress the power to implement laws obstructing an individual’s right to business contracts. Following this period however, courts began to return to overarching broad interpretations of the clause. 

 Evidently, the implications of the Commerce Clause have had a lasting impact on not only the political and economic landscape of the nation, but also its social fabric. We have seen its merits become invoked across an array of social contexts including desegregation, addressing interstate discriminatory practices and even slavery; all topics covered/witnessed in this curriculum. With that being said, due to its established precedent and overall positive social effect, the broader interpretation of the Commerce Clause is a more compelling, transformative argument.