CONSTITUTIONAL LAW SPRING 2008

PROF. FISCHERCLASS 10

January 30, 2008The Commerce Clause II

Interpretation: 1937-present

From 1937 change in approach to commerce clause

interpretation

What factors led to change in approach?

Election of 1936: Landslide for Roosevelt

Roosevelt’s Court-packing plan

NLRB v. Jones & Laughlin (1937) [C p. 131]

• Chief Justice Charles Evans Hughes wrote the majority opinion of the Court

• 5-4 decision (the “Four Horsemen” all dissented)

Change in approach from 1937

• Meaning of “commerce”

• Meaning of “among the . . . States”

• Whether Tenth Amendment operates as a limit on the commerce power of Congress

U.S. v. Darby (1941) [C p. 134]

• Justice Stone delivered opinion of the Court (unanimous)

Wickard v. Filburn (1942) [C p. 136]

• Justice Robert Jackson delivered opinion of a unanimous Court

Hodel v. Virginia Surface Mining & Recl. Ass’n (1981) [C p. 143]

• Majority opinion by Marshall (joined by Brennan, Stewart, White, Blackmun, Powell, Stevens]

• pay attention to Rehnquist’s concurring opinion

CIVIL RIGHTS LAWS: COMMERCE POWER USED TO

PROHIBIT DISCRIMINATION• E.g. Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241 (1964) [C p. 139] and Katzenbach v. McClung, 379 U.S. 294 (1964) (CB p. 141)

CRIMINAL LAWS • Perez v. United

States, 402 U.S. 146 (1971) [C p. 143]

• Majority opinion by Douglas, joined by Burger, Black, Brennan, White, Mashall, and Blackmun

• Dissent by Stewart

3 THINGS CAN BE REGULATED UNDER THE COMMERCE

POWER• 1. Channels of interstate commerce (e.g.

roads, terms/conditions on which goods can be sold interstate)

• 2. Instrumentalities of interstate commerce (e.g airlines, railroads, trucking) and persons/things in interstate commerce

• 3. Activity that [substantially] affects interstate commerce (read together with N & P clause)

U.S. v. Darby (1941) [C p. 134]

• Justice Stone delivered opinion of the Court (unanimous)

• Tenth Amendment “states but a truism that all is retained which has not been surrendered.”

National League of Cities v. Usery (1976) [C p. 145]

• 5-4 Majority opinion written by Justice Rehnquist (joined by Burger, Stewart, Blackmun, and Powell)

• Concurring opinion by Blackmun

• Dissent by Brennan joined by White and Marshall

Garcia v. San Antonio Metropolitan Transit Authority

(1985) [C p.148]• 5-4• Justice Blackmun

wrote the majority opinion, joined by Brennan, White, Marshall, and Stevens

• Powell, Rehnquist, O’Connor, Burger dissent