The Commerce Clause as a Source of National Police Power

The Court has several times expressly noted that Congress' exercise of power under the commerce clause is akin to the police power exercised by the States.\803\ It should follow, therefore, that Congress may achieve results unrelated to purely commercial aspects of commerce, and this result in fact has often been accomplished.

Paralleling and contributing to this movement is the virtual disappearance of the distinction between interstate and intrastate commerce. \803\E.g., Brooks v. United States, 267 U.S. 432, 436-437 (1925); United States v. Darby, 312 U.S. 100, 114 (1941). See Cushman, The National Police Power Under the Commerce Clause, 3 Selected Essays on Constitutional Law (Chicago: 1938), 62.

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Criminal Law. Federal criminal jurisdiction based on the commerce power, and frequently combined with the postal power, has historically been an auxiliary criminal jurisdiction.

That is, Congress has made federal crimes of acts that constitutes state crimes on the basis of some contact, however tangential, with a matter subject to congressional regulation even though the federal interest in the acts may be minimal.\832\

Examples of this type of federal criminal statute abound, including the Mann Act designed[[Page 209]]to outlaw interstate white slavery,\833\ the Dyer Act punishing interstate transportation of stolen automobiles,\834\ and the Lindbergh Law punishing interstate transportation of kidnapped persons.\835\

But, just as in other areas, Congress has passed beyond a proscription of the use of interstate facilities in the commission of a crime, it has in the criminal law area expanded the scope of its jurisdiction.

Typical of this expansion is a statute making it a federal offense to ``in any way or degree obstruct . . . delay . . . or affect . . . commerce . . . by robbery or extortion. . . .''\836\ With the expansion of the scope of the reach of ``commerce'' the statute potentially could reach crimes involving practically all business concerns, although it appears to be used principally against organized crime. \832\E.g., Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); Lewis v. United States, 445 U.S. 55 (1980); McElroy v. United States, 455 U. S. 642 (1982). \833\18 U.S.C. Sec. 2421. \834\18 U.S.C. Sec. 2312. \835\18 U.S.C. Sec. 1201. \836\18 U.S.C. Sec. 1951. And see, 18 U.S.C. Sec. 1952

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THE COMMERCE CLAUSE AS A RESTRAINT ON STATE POWERS --Doctrinal Background

The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on state power.\840\ This circumstance does not, however, of itself signify[[Page 210]]that the States were expected to participate in the power thus granted Congress, subject only to the operation of the supremacy clause.

As Hamilton pointed out in The Federalist,\841\ while some of the powers which are vested in the National Government admit of their ``concurrent'' exercise by the States, others are of their very nature ``exclusive,'' and hence render the notion of a like power in the States ``contradictory and repugnant.'' As an example of the latter kind of power, Hamilton mentioned the power of Congress to pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce? \840\

Thus, by Article I, Sec. 10, cl. 2, States are denied the power to ``lay any Imposts or Duties on Imports or Exports'' except by the consent of Congress. The clause applies only to goods imported from or exported to another country, not from or to another State, Woodruff v. Parham, 8 Wall. (75 U.S.) 123 (1869), which prevents its application to interstate commerce, although Chief Justice Marshall thought to the contrary, Brown v. Maryland, 12 Wheat. (25 U.S.) 419, 449 (1827), and the contrary has been strongly argued. W. Crosskey, Politics and the Constitution in the History of the United States 295-323 (1953). \841\The Federalist No. 32 (J. Cooke ed. 1961), 199-203.

Note that in connection with the discussion that follows, Hamilton avowed that the taxing power of the States, save for imposts or duties on imports or exports, ``remains undiminished.'' Id, 201. The States ``retain [the taxing] authority in the most absolute and unqualified sense[.]'' Id., 199.

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[[Page 243]]

CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption ---- In Gibbons v. Ogden,\1011\ the Court, speaking by Chief Justice Marshall, held that New York legislation that excluded from the navigable waters of that State steam vessels enrolled and licensed under an act of Congress to engage in the coasting trade was in conflict with the federal law and hence void.\1012\

The result, said the Chief Justice, was required by the supremacy clause, which proclaimed not only that the Constitution itself but statutes enacted pursuant to it and treaties superseded state laws that ``interfere with, or are contrary to the laws of Congress . . . . In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.''\1013\ \1011\9 Wheat. (22 U.S.) 1 (1824). \1012\A modern application of Gibbons v. Ogden is Douglas v. Seacoast Products, 431 U.S. 265 (1977), in which the Court, in reliance on the present version of the licensing statute utilized by

Chief Justice Marshall, struck down state laws curtailing the operations of federally licensed vessels. In the course of the Douglas opinion, the Court observed that ``[a]lthough it is true that the Court's view in Gibbons of the intent of the Second Congress in passing the Enrollment and Licensing Act is considered incorrect by commentators, its provisions have been repeatedly re-enacted in substantially the same form. We can safely assume that Congress was aware of the holding, as well as the criticism, of a case so renowned as Gibbons.

We have no doubt that Congress has ratified the statutory interpretation of Gibbons and its progeny.'' Id., 278-279. \1013\Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 211 (1824). See also McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 436 (1819).

Although preemption is basically constitutional in nature, deriving its forcefulness from the supremacy clause, it is much more like statutory decisionmaking, inasmuch as it depends upon an interpretation of an act of Congress in determining whether a state law is ousted. E.g., Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271-272 (1977). See also Swift & Co. v. Wickham, 382 U.S. 111 (1965).

``Any such pre-emption or conflict claim is of course grounded in the Supremacy Clause of the Constitution: if a state measure conflicts with a federal requirement, the state provision must give way. The basic question involved in these cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes.'' Id., 120.

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Since the turn of the century, federal legislation, primarily but not exclusively under the commerce clause, has penetrated deeper and deeper into areas once occupied by the regulatory power of the States. One result is that state laws on subjects about which Congress has legislated have been more and more frequently attacked as being incompatible with the acts of Congress and invalid under the supremacy clause.\1014\ \1014\

Cases considered under this heading are overwhelmingly about federal legislation based on the commerce clause, but the principles enunciated are identical whatever source of power Congress utilizes. Therefore, cases arising under legislation based on other powers are cited and treated interchangeably. -

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[[Page 244]] --- ``The constitutional principles of preemption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official bodies which might have some authority over the subject matter.''\1015\

As Justice Black once explained in a much quoted exposition of the matter: ``There is not--and from the very nature of the problem there cannot be--any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick.

In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.''\1016\ \1015\Amalgamated Assn. of Street, Electric Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 285-286 (1971). \1016\Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This case arose under the immigration power of cl. 4.

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Before setting out in their various forms the standards and canons to which the Court formally adheres, one must still recognize the highly subjective nature of their application. As an astute observer long ago observed, ``the use or non-use of particular tests, as well as their content, is influenced more by judicial reaction to the desirability of the state legislation brought into question than by metaphorical sign-language of `occupation of the field.'

And it would seem that this is largely unavoidable. The Court, in order to determine an unexpressed congressional intent, has undertaken the task of making the independent judgment of social values that Congress has failed to make. In making this determination, the Court's evaluation of the desirability of overlapping regulatory schemes or overlapping criminal sanctions cannot but be a substantial factor.''\1017\ \1017\Cramton, Pennsylvania v. Nelson: A Case Study in Federal Preemption, 26 U. Chi. L. Rev. 85, 87-88 (1956).

``The [Court] appears to use essentially the same reasoning process in a case nominally hinging on preemption as it has in past cases in which the question was whether the state law regulated or burdened interstate commerce. [The] Court has adopted the same weighing of interests approach in preemption cases that it uses to determine whether a state law unjustifiably burdens interstate commerce.

In a number of situations the Court has invalidated statutes on the preemption ground when it appeared that the state laws sought to favor local economic interests at the expense of the interstate market. On the other hand, when the Court has been satisfied that valid local interests, such as those in safety or in the reputable operation of local business, outweigh the restrictive effect on interstate commerce, the Court has rejected the preemption argument and allowed state regulation to stand.'' Note, Preemption as a Preferential Ground: A New Canon of Construction, 12 Stan. L. Rev. 208, 217 (1959) (quoted approvingly as a ``thoughtful student comment'' in G. Gunther, Constitutional Law (12th ed. 1991), 297).

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[[Page 245]]

Preemption Standards.