See the Eighteenth Amendment. Enforcing the original meaning of the Commerce Clause does not mean that other economic activities are free from any government regulation. It merely means that the power to regulate all intrastate economic activities resides with each of the fifty states.
Where national uniformity and coordination between states are desirable, these goals can be achieved by the Interstate Compacts Clause of Article I, Section 8, by which states may enter into agreements or compacts with another state or states, provided they have the consent of Congress. Many such compacts exist.
I identify some of the key advantages of decentralizing most law-making at the state level in my statement on Federalism. Here is a summary of my analysis there:. In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level. And the United States has been a far more prosperous and contented country because of its federal system, though our system of federalism could stand to be bolstered.
But all these benefits and more are only available by enforcing the limits on Congressional power provided by the original meaning of the Commerce Clause. This is precisely what it was unable to do under the Articles of Confederation. Gibbons v. Combined with the Necessary and Proper Clause, the power is broad. It is not, however, infinite. Maryland is to hold that Congress cannot use its commerce power when there is no colorable interstate problem to solve.
That line is sometimes crossed. In United States v. The law scored cheap political points by appearing to address a pressing and difficult problem without contributing anything substantial to its solution. Yet when the Court has attempted to craft limits on the commerce power, the results have not been pretty.
The Court began with a constricted understanding of commerce as including only trade and navigation, and then— after some decades of preventing Congress from outlawing child labor—accommodated the modern state by stretching the meaning of this understanding and proliferating legal fictions, producing bizarrely formalistic law. An understanding of commerce limited to trade constrains the federal government with no regard for the reasons why federal regulation might be necessary, and thus pointlessly casts doubt on laws governing civil rights, workplace safety, sanitary food, drug safety, and employee rights.
More recently, the Court has declared that Congress has plenary authority over economic, but not noneconomic activity. Morrison If that were right, Congress would be deprived of authority over such nontrivial matters as the spoliation of the environment or the spread of contagious diseases across state lines.
In Gonzales v. In NFIB v. Sebelius , the Court held that the Necessary and Proper Clause did not permit Congress to compel activity, such as the purchase of health insurance. The law was struck down. The same test was used in to strike down an Illinois law requiring trucks to have contoured rear fender mudguards rather than the straight mud guard flaps required by most other states Bibb v Navajo Freight and in to invalidate a Wisconsin law that limited truck length to 55 feet at a time when most long haul truck lines had gone to 65 foot trucks Raymond Motor Transportation v Rice.
Oneida-Herkimer's solid waste management facility. In United Haulers Assoc. Justice Roberts, writing for the Court, concluded that the law not discriminatory because it did not favor a private in-state trash facility, but rather a government-owned facility, and therein lies a constitutional difference.
The burden of the "flow control" law, in the form of more expensive trash service, falls on in-state residents and could not be seen as an attempt to shift costs to out-of-state businesses. Because the law was deemed non-discriminatory, the Court applied its balancing test and found that the local benefits of the law effective financing of waste disposal and increased recycling outweighed the abstract harm on out-of-state businesses of removing waste processing services from the national marketplace.
Our last two cases deal with the "market participant" exception to Commerce Clause analysis. Concluding that South Dakota was acting as a market participant rather than as a regulator of commerce, the Court upheld the state's preference for in-state customers. Reeves was distinguished in S outh-Central Timber Development Inc v Wunnicke , which invalidated Alaska's policy of insisting that high-bidders on state-owned timber agree to process some of the timber they purchased at Alaskan sawmills.
The Court saw the bidding rules as an attempt to control commerce "down the stream," and that therefore the state was acting as a regulator, not as a mere market participant. Seelig Inc. South Dakota's preference for in-state buyers of cement from this plant was challenged in Reeves v State Southern Pacific train. The company successfully challenged New York's denial of its license to distribute milk collected in New York to Boston.
Which interpretation of the Commerce Clause outlined in the introduction makes the most sense? Was the Pennsylvania pilotage law involved in Cooley more likely enacted for safety reasons or for protectionist reasons? If, as the Court said in Marbury , it's the Supreme Court's job to say what the Constitution means, why should the Court defer to Congress when it comes to defining the reach of state power to regulate commerce?
Can you imagine a situation in which the Court might invalidate a state regulation of commerce when it had been specifically authorized by Congress?
Baldwin makes clear that the Court will scrutinize carefully state laws that discriminate against out-of-state commerce? But how to we determine whether a law does discriminate against out-of-state commerce? Should we look only at intent, or is a discriminatory effect enough? If a state like Minnesota or Wisconsin, with many small dairy farms, enacted a law that prohibited the sale within the state of "milk coming from cows with less than eighty square feet of stall space," would the law be constitutional?
The law might have been supported by some on animal welfare grounds, whereas other legislators might have seen benefits from reducing the inflow of milk from state such as California, where cows on "factory farms" are typically are afforded less space than on Minnesota and Wisconsin family dairy farms.
The majority opinion in Comstock upheld the statute after considering five factors: 1 the historic breadth of the Necessary and Proper Clause; 2 the history of federal involvement in this area; 3 the reason for the statute's enactment; 4 the statute's accommodation of state interests; and 5 whether the scope of the statute was too attenuated from Article I powers.
Maryland , 81 where the Chief Justice wrote: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. Previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became insane during the course of their imprisonment, but, starting in , the continued confinement of those adjudged incompetent or insane past the end of their prison term.
In upholding the sex offender statute, the Court found that protection of the public and the probability that such prisoners would not be committed by the state represented a rational basis for the passage of such legislation. The Court further found that the state interests were protected by the legislation, as the statute provided for transfer of the committed individuals to state authorities willing to accept them.
Finally, the Court found that the statute was not too attenuated from the Article I powers underlying the criminal laws which had been the basis for incarceration, as it related to the responsible administration of the United States prison system.
Another significant source of congressional power is Section 5 of the Fourteenth Amendment. The Fourteenth Amendment provides that states shall not deprive citizens of "life, liberty or property" without due process of law nor deprive them of equal protection of the laws. Section 5 provides that Congress has the power to legislate to enforce the amendment. The Fourteenth Amendment represented a significant shift of power in the nation's federal system.
Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government. However, the amendments passed immediately after the Civil War the Thirteenth, 82 Fourteenth, and Fifteenth 83 Amendments , dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress.
The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection. However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality. The scope of Congress's power under Section 5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v.
Morgan , 84 the Court held that Section 5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope.
In Katzenbach , the Court upheld a portion of the Voting Rights Act of that barred the application of English literacy requirements to persons who had reached 6 th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment.
Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution. The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under the Fourteenth Amendment. This is true even if a court would not find a constitutional violation to have occurred.
In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right. Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell , 85 the Court struck down a requirement that the voting age be lowered to 18 for state elections.
In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights.
As year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights. More recently, in the case of Flores v. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest.
However, in the case of Oregon v. Smith , 87 the Court had lowered this standard. The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony. The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest.
RFRA, in response, was an attempt by Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion. The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA. The Supreme Court reiterated that Section 5 of the Fourteenth Amendment gave Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights.
Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. For instance, the Court's decision in Katzenbach v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country.
In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion. The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types.
The scope of the enforcement power under Section 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof. For instance, as discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state sovereign immunity generally prohibit individuals from suing states for damages under federal law.
For instance, a significant amount of federal legislation is clearly supported by the commerce clause, but it might not be supported under Section 5. Recently, the Court decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority for such legislation.
In College Savings Bank v. The New Jersey savings bank had developed a patented program where individuals could use a certificate of deposit contract to save for college.
The state of Florida set up a similar program, and the College Savings Bank sued Florida for false and misleading advertising under a provision of the Trademark Act of Lanham Act , 91 alleging that Florida had made misleading representations about its own product.
The Court first noted that under Seminole Tribe of Florida v. Florida , Article I, powers such as the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity. Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of Congress's power under Section 5 of the Fourteenth Amendment.
Although the Fourteenth Amendment provides that no state shall "deprive a person of As the Court found that Congress had not established an authority under the Fourteenth Amendment to abrogate the state's immunity, the College Savings Bank could not proceed against the state of Florida for unfair trade practices. Even if a property interest is established, it would still need to be determined that Congress had the authority to protect that property interest under the Fourteenth Amendment.
College Savings Bank , 92 the Court, in a decision concerning the same parties as the case discussed above, considered whether the College Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law specifically providing that states could be sued for patent violations, 93 citing three sources of constitutional authority: the Article I Patent Clause, 94 the Article I Interstate Commerce Clause, 95 and Section 5 of the Fourteenth Amendment.
As the Court had previously precluded abrogation of sovereign immunity through the exercise of Article I powers, the question became whether Congress had the authority to pass patent legislation under Section 5 of the Fourteenth Amendment. Unlike the previous case, the Court found that, under a long line of precedents, patents were considered property rights. However, the Court had to further consider whether the protection of such a property right under Section 5 of the Fourteenth Amendment was "appropriate" under its ruling in City of Boerne.
Consequently, the Court evaluated whether a federal right to enforce patents against states was appropriate remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners. Specifically, the Court sought to evaluate whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment violation that Congress could redress. The Court noted that Congress had failed to identify a pattern of patent infringement by the states, and that only a handful of patent infringement cases had been brought against states in the last years.
The Court also noted that Congress had failed to establish that state remedies for patent infringement were inadequate for citizens to seek compensation for injury.
In fact, the state of Florida argued that no constitutionally based violation had occurred, as it had procedures in place that would provide the necessary due process for patent infringement by the state to be challenged. Consequently, the Court found that the exercise of Section 5 of the Fourteenth Amendment in this context would be out of proportion to the remedial objective.
The Court engaged in a similar analysis, with like results, in evaluating the application of age discrimination laws to the states. In Kimel v. Florida Board of Regents , 96 the Court noted that the Age Discrimination in Employment Act of , while a valid exercise of Congress's commerce power, could not be applied to the states unless Congress also had the power to enact it under Section 5 of the Fourteenth Amendment. The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA far surpassed the kind of protections that would be afforded such a class under the Fourteenth Amendment.
Further, the Court found that an analysis of Congress's ability to legislate prophylactically under Section 5 required an examination of the legislative record to determine whether the remedies provided were proportional and congruent to the problem. A review by the Court of the ADEA legislative record found no evidence of a pattern of state governments discriminating against employees on the basis of age.
Garrett , 97 again with similar result. In Garrett, the Court evaluated whether two plaintiffs could bring claims for money damages against a state university for failing to make reasonable employment accommodations for their disabilities; one plaintiff was under treatment for cancer, the other for asthma and sleep apnea.
Although disability is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had previously shown a heightened sensitivity to arbitrary discrimination against the disabled.
However, the Supreme Court declined to consider evidence of discrimination by either the private sector or local government, and dismissed the examples that did relate to the states as unlikely to rise to the level of constitutionally "irrational" discrimination. Ultimately, the Court found that no pattern of unconstitutional state discrimination against the disabled had been established, and that the application of the ADA was not a proportionate response to any pattern that might exist.
However, the Court reached a different conclusion in the case of Nevada Department of Human Resources v. The FMLA requires employers to provide employees up to 12 weeks of unpaid leave to care for a close relative with a "serious health condition.
The Court found that Congress had established significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the states, and that history was sufficient to justify the enactment of the legislation under Section 5.
The standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test, such was at issue in Kimel and Garrett , so it was easier for Congress to show a pattern of state constitutional violations.
Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a federal law that does not appear to have a constitutional basis elsewhere in the Constitution. For instance, in United States v. Morrison , discussed previously, the Court found that Congress, in creating a federal private right of action for victims of gender-motivated violence, had exceeded its authority under the Commerce Clause.
Consequently, the plaintiff in that case made the alternate argument that the federal private right of action could be sustained under Section 5 of the Fourteenth Amendment. This argument, however, suffered from two major defects. First, the Court has long held that the Fourteenth Amendment provides Congress with the authority to regulate states but not individuals.
The plaintiff attempted to avoid this problem by arguing that there is pervasive bias in various state justice systems against victims of gender-motivated violence, and that providing a federal private right of action was an appropriate means to remedy this "state action. However, the Court rejected this argument, finding that the remedy did not meet the City of Boerne test of "congruence and proportionality to the injury to be prevented or remedied and the means adopted to that end. Similar to its holdings in the Garrett and Hibbs cases, the Court found that Congress had established sufficient evidence of the sustained denial of persons with disabilities of access to the courts.
In applying the Boerne congruence and proportionality test, the Court in Lane distinguished the rights Congress intended to protect in Title II access to public services, programs, and activities from the Title I employment rights that had been struck down in Garrett. While both Titles I and II were intended to address unequal treatment of the disabled which is only a constitutional violation when it is irrational , the Court held that Title II was also intended to reach the more rigorously protected rights of the Due Process Clause of the Fourteenth Amendment, such as the right of access to the courts.
Congress's authority under Section 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity appears strongest when the focus of the prophylactic measure at issue is conduct that actually violates a constitutional right. Georgia , a disabled state prison inmate who used a wheelchair for mobility alleged that the state of Georgia violated Title II of the ADA in relation to his conditions of confinement.
It went on to state that Title II was valid as applied to the plaintiff's cause of action, because he alleged independent violations under Section 1 of the Fourteenth Amendment concerning his prison treatment. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain "core" state functions would be beyond the authority of the federal government to regulate.
Thus, in National League of Cities v. Usery , the Court struck down federal wage and price controls on state employees as involving the regulation of core state functions. San Antonio Metropolitan Transit Authority.
The Court soon turned, however, to the question of how the Constitution limits the process by which the federal government regulates the states. In New York v. United States , Congress had attempted to regulate in the area of low-level radioactive waste. In a statute, Congress provided that states must either develop legislation on how to dispose of all low-level radioactive waste generated within the state, or the state would be forced to take title to such waste, which would mean that it became the state's responsibility.
The Court found that although Congress had the authority under the Commerce Clause to regulate low-level radioactive waste, it only had the power to regulate the waste directly.
According to Title III of the Americans with Disabilities Act , hotels, restaurants, and certain places of entertainment must provide disability access. The U. It also enforces federal laws on clean water and safe drinking water.
The EPA also enforces federal regulations to limit the impact of businesses on the environment. It protects and conserves threatened and endangered plants, animals, and their habitats. The FDA is responsible for the safety of food and any substance that is applied to the human body. Department of Labor. It deals with problems with the environment inside the workplace. This includes the presence or handling of toxic chemicals and fumes.
States have primary responsibility over many environmental programs. And some environmental laws and regulations apply to tribal government operations. Impeachment is the process of bringing charges against a government official for wrongdoing. A trial may be held and the official may be removed from office. The Senate holds an impeachment trial.
In the case of a president, the U. Supreme Court chief justice presides. If found guilty, the official is removed from office.
They may never be able to hold elected office again. The House has initiated impeachment proceedings more than 60 times. But there have been only 20 impeachments.
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