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In the first 5 blogs (Blog 1, Blog 2, Blog 3, Blog 4, Blog 5) of this 8 part series, we examined the Democrats' individual mandate on health care through the lens of a strict textual reading of the Constitution. But if we are going to understand whether or not the law will be struck down by our modern court system, we must first understand the 222 years of case law that have vastly expanded congressional authority.
How did we get here?
Section 7: Case law – the shift away from the founders’ words
For much of the history of the Supreme Court, a broader, looser interpretation of the Commerce Clause has been applied to federal legislation. The weeds of this expansion have their roots in the Marshall Court and continue to infest Court decisions to this day. The first such case was Gibbons v. Ogden which was brought before the Court in 1824.
In the early nineteenth century, the state of New York passed a law which granted the exclusive right to operate steamboats on state waters to two individuals. This caused problems for out-of-state boats which were forced to acquire a special permit to navigate through such waters. Daniel Webster, the lawyer for Thomas Gibbons, argued before the Supreme Court that the state permitted monopoly needed be dismantled because New York was imposing upon Congress’s constitutional authority to regulate interstate commerce. In Gibbons, Chief Justice John Marshall for the first time applied his own definition to the term “commerce.” He writes:
Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.
Marshall ruled that the word “commerce” includes within it the navigation of commercial goods between states. The view that commerce encompasses navigation, however, is nothing extraordinary. The founders often used the words “shipping” and “navigation” in accordance with commerce and on numerous occasions they made clear their intention to grant Congress the power to regulate both. What is more striking is Marshall’s use of “intercourse” as interchangeable with commerce. Although Samuel Johnson’s dictionary defines commerce as “Intercourse; exchange of one thing for another…” and intercourse as “Commerce; exchange,” by inserting a new word into the Commerce Clause Marshall left the door open to the vast expansions that we have seen from subsequent generations of court justices. Marshall may not have believed that “commerce” encompasses every form of intercourse (especially not non-economic intercourse), but his definition of commerce has been relied upon and manipulated to further expand the power granted to the federal government under the Commerce Clause.
More expansive still, Marshall crafted his own definition of “among the several States” when writing the opinion for the Gibbons case:
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... it may very properly be restricted to that commerce which concerns more States than one.
The view that “among the several states” is interchangeable with the phrase “concerns more state than one” has been accepted by every subsequent Court. But the Constitution does not grant Congress the power to regulate commerce that “concerns more than one state.” And although he did not intend it too, Marshall’s loose interpretation has been used to justify federal legislation that regulates purely intrastate activities—regulations that the founders sought to leave up to the states.
Marshall’s Court concluded that the state granted monopoly on navigation and the required permits for out-of-state boats that went along with it conflicted with other congressional legislations. The New York law was repealed because it imposed upon powers specifically designated to the federal government. Marshall ruled that the regulation of navigation for the purpose of interstate commerce was an authority granted to Congress by the Constitution and thus, states had no jurisdiction over it.
In Gibbons, Marshall goes on to write:
The enumeration presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.
His successors have conveniently overlooked this observation and instead have focused on the expanded meanings of “commerce” and “among” that he provides. Whether he intended them to or not, Marshall’s personal definitions have given generations of justices the license to vastly expand federal power.
Decades of Lull Followed by Decades of Expansion
In the decades that immediately followed the Gibbons decision, the Court had few opportunities to examine federal commerce powers. It frequently examined what is known as the Dormant Commerce Clause which the Heritage Foundation defines as:
...the power of the states to enact legislation that affects interstate commerce when Congress… has not enacted any legislation.
But the Court did not return to congressional commerce powers until the late nineteenth century with United States v. E.C. Knight Co (1895). In the cases of Swift & Co. v. United States (1905) and Stafford v. Wallace (1922), the Court further expanded the federal government’s regulatory powers concluding that goods in the “stream of commerce” such as cattle heading from a farm to a nationwide meat distributer fell under congressional regulation.
The furthest reaching expansions, however, did not appear until after President Franklin D. Roosevelt’s so-called “court-packing” scheme. During his first term, Roosevelt saw the Supreme Court strike down key New Deal provisions. Frustrated that his legislative efforts—which were meant to aid economic recovery during the Great Depression—were being undermined, Roosevelt sought to expand the number of Supreme Court justices. In doing so, he hoped to create a pro-New Deal majority that would be more receptive to the legislation that he signed into law. Although the plan eventually failed, it seemed to cause a great shift in the opinion of the Court. Following the debate over the court-packing legislation, the Supreme Court took on a far more activist role. One such post-court-packing scheme case accounts for the greatest expansion of Commerce Clause powers in United States history.
The case of Wickard v. Filburn involved a small farmer named Filburn who filed a complaint after being penalized for growing more wheat on his farm than the Department of Agriculture authorized. He was originally given a wheat acreage allotment of 11.1 acres. Claiming that the extra wheat was being cultivated for strictly personal use, he harvested nearly 12 acres of wheat more than he was allotted. Because the wheat was being used to feed livestock and for other personal purposes, Filburn asserted that the federal government had no constitutional authority to regulate its growth. Cultivating wheat with the intension of feeding livestock, he argued, was unrelated to commerce and thus fell outside of Commerce Clause jurisdiction.
The Court disagreed.
Relying upon contemporary case law, Justice Jackson cited Chief Justice Hughes in the opinion:
The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce… the reach of [commerce] power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.
For the first time, the Supreme Court expanded the Commerce Clause to include regulatory power over any activity that took place in any state as long as it could be shown to have some affect on interstate commerce.
Filburn asserted that the legislation in question regulated the production and consumption of wheat. Such activities, he claimed, are completely local in nature and do not constitute commerce. Disregarding the views of the founders and their clear belief that some regulatory powers must be left to the states, Jackson writes:
[E]ven if [an] activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce…
Expanding the commerce powers to such a broad understanding left almost nothing outside of the realm of Congress’s power to regulate.
In 2005, the Court examined a case that was very similar to Wickard v. Filburn. The case, Gonzales v. Raich, challenged Congress’s authority to regulate the cultivation of cannabis grown for strictly personal use. California voters passed Proposition 215, the Compassionate Use Act, by initiative in 1996. It legalized the use of marijuana for medical purposes by seriously ill residents. The law, however, was inconsistent with the federal Controlled Substances Act (CSA), which prohibited the possession of cannabis. Angel Raich and Diane Monson were California residents who suffered from numerous medical conditions that necessitated the use of medicinal marijuana to alleviate pain. In 2002, Drug Enforcement Administration (DEA) officials seized and destroyed the cannabis that Monson had been cultivating for strictly personal use. Raich and Monson in turn sued the DEA and U.S. Attorney General asserting that Congress did not have the authority under the Commerce Clause to regulate the production of cannabis cultivated for strictly personal use.
But in the opinion of the Court, Justice Stevens writes:
Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.
Relying heavily on the expanded understanding of the Commerce Clause found in Wickard, Stevens asserts that Congress has the authority to regulate “purely intrastate activity that is not itself ‘commercial’” if it can be shown that not regulating such activity may “undercut the regulation of the interstate market.” Worse still, in Gonzales the Court takes the Commerce Clause and expands it one step further than the Court in Wickard:
In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.
The introduction of this so-called “rational basis” test eliminated one of the few limitations left on commerce power after the decision in Wickard. Wickard expanded commerce powers greatly but Congress was still limited to regulating activities that “affect interstate commerce.” Under the rational basis test, however, the federal government now possesses the authority to regulate any activity in any state as long as it can show that it has some reason for doing so. If the federal government is allowed to regulate any activity as long as there is some rational basis for the regulation, then there are no activities that exist outside of its commerce powers.
Understanding how the Court has expanded Commerce Clause authority over the past two centuries is a vital part of attempt to predict whether or not the individual mandate will be struck down by our modern court system. But it isn't the only part. In recent years, there has been a shift toward a narrower understanding of the Commerce Clause. In our next installment of this 8 part series, we will examine that shift.