Commerce Power Research Articles

Federal Courts - Indians: The Eleventh Amendment and Seminole Tribe: Reinvigorating the Doctrine of State Sovereign Immunity

In March of 1996, the U.S. Supreme Court in Seminole Tribe v. Florida reassessed the balance of power between the federal government, the state government and tribal governments. Under the Indian Gaming Regulatory Act, the U.S. Congress provided that Tribes have the ability to sue states who failed to negotiate in good faith for tribal-state gaming compacts in federal courts. In this Court decision, the federal courts were closed to Tribes based an interpretation of the U.S. Constitution's Eleventh Amendment sovereign immunity clause for state governments. After finding that the U.S. Congress lacked the authority to abrogate Florida's sovereign immunity through Article I commerce power, the Court went on to deny the Ex Parte Young alternative offered by the Seminole Tribe against Florida officials. In the end, the decision may be viewed as positive in terms of reaffirming the tribal-federal relationship, strengthening common law sovereign immunity which the Tribes enjoy, and clarifying that the federal government has a primary role with Tribes.

Rufus W. Peckham and Economic Liberty

It is striking that Justice Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of the Lochner v. New York (1905), one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, anti-trust law, eminent domain, dormant commerce power, and the Eleventh Amendment. He was clearly among the intellectual leaders of the Fuller Court. This paper seeks to take a fresh look at Peckham's career and assess his contributions to constitutional jurisprudence. The paper argues that Peckham, although a champion of economic liberty, was neither a doctrinaire adherent to laissez-faire principles or a one-sided defender of large-scale business interest. Instead, his overriding concern was to protect small, self-sufficient entrepreneurs from both excessive governmental regulation and exploitation by concentrated private power.

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War. By David L. Lightner. (New Haven: Yale University Press, 2006. Pp. xii, 228. $45.00.)

<i>Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War</i>. By David L. Lightner. (New Haven: Yale University Press, 2006. Pp. xii, 228. $45.00.)

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War (review)

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War (review)

Necessities of State: Police, Sovereignty, and the Constitution

Over the last fifteen years, legal historians have been exploring conceptualizations of the state and state capacity as phenomena of police. In this essay, I offer a genealogy of police in nineteenth-century American constitutional law. I examine relationships among several distinct strands of development: domestic regulatory law, notably the commerce power; the law of indigenous peoples and immigrants; and the law of territorial acquisition. I show that in state and federal juridical discourse, police expresses unrestricted and undefined powers of governance rooted in a discourse of sovereign inheritance and state necessity, culminating in the increasingly pointed claim that as a nation-state the United States possesses limitless capacity “to do all acts and things which independent states may of right do.”

Necessities of State: Police, Sovereignty, and the Constitution

Over the last fifteen years, legal historians have been exploring conceptualizations of the state and state capacity as phenomena of police. In this essay, I offer a genealogy of police in nineteenth-century American constitutional law. I examine relationships among several distinct strands of development: domestic regulatory law, notably the commerce power; the law of indigenous peoples and immigrants; and the law of territorial acquisition. I show that in state and federal juridical discourse, police expresses unrestricted and undefined powers of governance rooted in a discourse of sovereign inheritance and state necessity, culminating in the increasingly pointed claim that as a nation-state the United States possesses limitless capacity “to do all acts and things which independent states may of right do.”

Setting Expectations for the Federal Role in Public Health Emergencies

I would like to begin by discussing the legal and administrative framework of the role of the federal government in public health. At the heart of it is, of course, the Constitution. At the Department of Health and Human Services (HHS) we depend, as does much of the federal government, on our power to regulate interstate commerce. Since the Supreme Court in 1942 removed essentially any restraint from the meaning of interstate commerce in Wickard v. Filburn, the federal government has been regulating with wide latitude, in spite of small and, arguably, equivocal reverses in recent years. However, even though the Supreme Court no longer provides any real constitutional check on the federal government's interstate commerce power, some other restraints persist. For example, many parts of the health system have traditionally been deemed inherently state functions, such as the licensing and disciplining of doctors, nurses, and pharmacists, as well as the practice of medicine itself.

DAVID L. LIGHTNER. Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War. New Haven, Conn.: Yale University Press. 2006. Pp. xii, 228. $45.00

DAVID L. LIGHTNER. Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War. New Haven, Conn.: Yale University Press. 2006. Pp. xii, 228. $45.00

Slavery and the commerce power: how the struggle against the interstate slave trade led to the Civil War

Despite the United States' ban on slave importation in 1808, profitable interstate slave trading continued. The nineteenth century's great cotton boom required vast human labor to bring new lands under cultivation, and many thousands of slaves were torn from their families and sold across state lines in distant markets. Shocked by the cruelty and extent of this practice, abolitionists called upon the federal government to exercise its constitutional authority over interstate commerce and outlaw the interstate selling of slaves. This groundbreaking book is the first to tell the complex story of the decades-long debate and legal battle over federal regulation of the slave trade. David Lightner explores a wide range of constitutional, social, and political issues that absorbed antebellum America. He revises accepted interpretations of various historical figures, including James Madison, Harriet Beecher Stowe, and Abraham Lincoln, and he argues convincingly that southern anxiety over the threat to the interstate slave trade was a key precipitant to the secession of the South and the Civil War.

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions, 2013 Edition

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law and. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property. The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the navigation servitude, “regulatory takings”; “judicial takings,” the “navigability” boundary on federal power; the “public use” limitation on eminent domain; the balance between property rights and First Amendment liberties; the “essential nexus” between government prohibition and purpose; the fine line between taxation and expropriation, and; commerce power limitations on Congress’s law-making. Special attention is directed at the Supreme Court’s 2012 decision concerning the constitutionality of the Affordable Care Act (“Obamacare”). The court cases in this work have been grouped into thirty seven sessions. Most sessions consist of four or five cases, and the related statutes, if any. The materials are intended to be economically, politically and legally evocative and to provide an assignment appropriate for a class hour of discussion. The text consists of non-copyrighted material and readers are free to use or re-mix it in whole or part. The tightly-edited cases may be readily borrowed for use in other courses. No rights are reserved.

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War

Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War

A Government of Limited Powers

Roscoe C. Filburn owned small farm in Ohio where he raised poultry, dairy cows, and modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. Agricultural Adjustment Act of 1938 limited wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, Secretary of Agriculture, could not enforce AAA's limits because Congress lacked authority to wheat grown for one's own use. He reasoned: In our federal system, states have authority to legislate except where Constitution constrains them, but federal government may legislate only where Constitution authorizes it. Constitution permits Congress to regulate Commerce with foreign Nations, and among several States and may all Laws which shall be necessary and proper for carrying into Execution its Commerce Clause powers. Mr. Filburn thought that growing and eating wheat on his land were acts in character and that their effects upon interstate commerce are at most 'indirect.' Diane Monson lives in California. She has been growing marijuana she takes to treat substantial medical problems. California Compassionate Use Act of 1996 exempts from criminal liability patients ... who possess or cultivate marijuana for medicinal purposes with recommendation or approval of physician. However, federal Controlled Substances Act classifies marijuana as Schedule I drug. Such drugs have high potential for abuse and no accepted medical use, and it is federal crime to manufacture, distribute, or possess them. Diane Monson (with Angel Raich, another patient using marijuana) went to court to argue that Alberto Gonzales, Attorney General, could not enforce CSA against her or her doctors because Congress lacks authority to marijuana she grows for her own use. Ms. Monson argued that Commerce Clause does not authorize Congress to prohibit local cultivation and use of marijuana in compliance with California law. In 1942, Wichard v. Filburn reached Supreme Court. Justices agreed that AAA was constitutional. They quoted Chief Justice Harlan Stone: The commerce power is not confined in its exercise to regulation of commerce among states. It extends to those activities intrastate which so affect interstate commerce ... as to make regulation of them appropriate means to attainment of legitimate end. Thus, even if appellee's activity be local and though it may not be regarded as commerce, it may still ... be reached by Congress if it exerts substantial economic effect on interstate commerce. Mr. Filburn's wheat affected interstate commerce because it kept him from buying somebody else's wheat. And while his crop was small, its effect, taken together with that of many others similarly situated, is far from trivial. On June 6 of this year, Justices decided six to three that Congress may Ms. Monson's marijuana garden. Justice Stevens said for Court that Commerce Clause was the Framers' response to central problem giving rise to Constitution itself: absence of any federal commerce power under Articles of Confederation. Thus Commerce Clause power is capacious, and case law firmly establishes Congress' power to purely local activities that are part of an economic 'class of activities' that have substantial effect on interstate commerce. principle of stare decisis obliges American courts to decide similar cases similarly. Raich virtually was Wickard. Like farmer in Wickard, respondents are cultivating, for home consumption, fungible commodity for which there is an established, albeit illegal, interstate market. Just as AAA controlled amount of wheat in interstate and foreign commerce, a primary purpose of CSA is to control supply and demand of controlled substances in both lawful and unlawful drug markets. …

Intellectual Property and Constitutional Norms

The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the limited times requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, exclusive rights are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.

Intellectual Property and Constitutional Norms

The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the limited times requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, exclusive rights are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.

The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause

The constitutional controversy surrounding the recently enacted Partial-Birth Abortion Ban Act of 2003 has focused on whether the Act imposes an undue burden on a woman's right to choose an abortion. More specifically, the question is whether the Act runs afoul of the principles enunciated in Stenberg v. Carhart, 530 U.S. 914 (2000). The focus of this essay is on a separate constitutional question, namely, whether the Act represents a valid exercise of the commerce power under the principles enunciated in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). The author concludes that under current Commerce Clause doctrinal standards the constitutionality of the Act as written is in serious doubt. Since this is a working draft, the author invites comments and criticisms.

Unceasing Animosities and the Public Tranquility: Political Market Failure and the Scope of the Commerce Power

Unceasing Animosities and the Public Tranquility: Political Market Failure and the Scope of the Commerce Power

Unceasing Animosities and the Public Tranquility: Political Market Failure and the Scope of the Commerce Power

Unceasing Animosities and the Public Tranquility: Political Market Failure and the Scope of the Commerce Power

Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on the Commerce Power by the Copyright Clause

A series of recent cases challenging the constitutionality of congressional expansions of the duration and scope of copyright protection have focused considerable attention on the so-called preamble to the Copyright which requires that congressional action promote the Progress of Science and useful Arts. Most recently, in Eldred v. Ashcroft, the Supreme Court considered whether, in light of the 'preambular statement of purpose' contained in the Copyright Clause, a 20 year extension of existing copyrights is unconstitutional. Surrounding these cases has been a sharp difference of opinion between legal academics arguing that the progress requirement acts as a constraint on congressional intellectual property legislation, and the courts, which have thus far rejected arguments to that effect. This Article considers the merits of these arguments, but also asks a more important question: are these arguments actually moot? In the event that the preamble of the Copyright Clause is found to constrain congressional action under that clause, could Congress simply enact intellectual property legislation under its commerce power? After all, who could deny that intellectual property rights implicate interstate commerce? The Article examines the interaction between constitutional clauses and grants of power, and considers several arguments to the effect that the preamble of one clause constrains legislation otherwise authorized by other clauses. It concludes that although there is no reason to believe that the copyright preamble directly constrains commerce clause legislation, Congress is nonetheless bound to adhere to the purposive requirements of that preamble because only those restraints ensure that intellectual property rights are consistent with the First Amendment. In short, even if socio-economic change has placed intellectual property rights within the scope of the commerce power, as well as the copyright clause, the First Amendment continues to limit the permissible extent and purpose of those rights in a way that closely resembles the constraints of the copyright preamble. So while the preamble of the Copyright Clause may not itself constrain Congress, intellectual property legislation must nonetheless adhere to the purposive limitations it imposes.

Economic Instruments and the Kyoto Protocol: Can Parliament Implement Emissions Trading without Provincial Co-operation

The ability of the federal government to ratify the Kyoto Protocol — the international treaty to reduce greenhouse gas emissions — is uncontested by provincial governments. However, the recent provincial opposition to this treaty could result in a constitutional challenge to Parliament's domestic implementation of the binding emission targets. This potential challenge is a result of the uncertainty in Parliament's authority to implement the necessary legislation. This article examines the federal authority to implement emissions trading — an economic instrument into which the federal government has invested a considerable amount of research in recent years. As possible reliance for Parliament's jurisdiction over trading, three federal powers are investigated: the peace, order and good government power, the criminal law power and the trade and commerce power. While there are difficulties with reliance on each of these powers, the peace, order and good government power is likely to provide the strongest argument for federal jurisdiction. Given the federal government's lack of clear legislative authority for trading, this article finishes by examining the alternative economic instrument of emissions taxation, concluding that Parliament's power to implement taxes is much more certain.