How the Supreme Court Denies Federalism and Liberty (Part III)

The 1985 case Garcia v. San Antonio Metropolitan Transit Authority held that Congress had the power via the commerce clause to extend the Fair Labor Standards Act (FLSA) to the States. The FLSA was passed in 1938 and requires that state governments pay employees a minimum wage and overtime. In 1968 the Court held in Maryland v. Wirtz that Congress had the authority via the commerce clause to regulate hospital and school employee wages and overtime (obviously, this is intrastate and not interstate commerce – the expansion of the commerce clause continues). Justice Blackmun wrote the majority opinion and said that Congress could use the Constitution’s supremacy clause to preempt any state laws that conflict with FLSA standards. In her dissent, Justice Sandra Day O’Connor expressed concern over how the interstate commerce power of Congress can be used to control every economic aspect in society. Justice Powell dissented saying “The State’s role in our system of government is a matter of Constitutional law, not legislative grace”. In the 1995 case United States v. Lopez Justice Rehnquist did not overturn Garcia but emphasized the need to regulate or set standards for interstate commerce. The Garcia ruling overturned the 1976 case National League v. Usery where the Court claimed the FLSA could NOT be applied to the states. Justice Rehnquist concluded economic decision such as wages, overtime pay, and compensation were best decided by the states. For instance, a national minimum wage does not consider the cost of living in all of the states. In some states, with a high cost of living, the minimum wage may not be enough, but in states with a low cost of living, the minimum wage could be detrimental to businesses and employment. For these reasons, the Federal government and Court have no business deciding economic decisions for the states.

By the 1990s some of the power of Congressional coercion and the commerce clause began to dwindle. In the 1992 decision for New York v. United States the court held that the Low-Level Radioactive Waste Policy (LLRWP) of 1985 exceeded Congress’s power under the commerce clause. However, only one of three provisions of LLRWP was found unconstitutional. Justice O’Connor found that the provision in question of the LLRWP attempted to “commandeer” or coerce state governments to participate in the program.

In the 1988 case South Carolina v. Baker the Court ruled that the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) did not violate the Tenth Amendment. The federal government continued its practice of allowing a federal tax exemption for state bonds except in the case of bearer bonds. South Carolina sued to reinstate all its bonds for tax exempt benefits and status. The 2000 case between Reno v. Condon the Court held the Driver’s Privacy Protection Act of 1994 (DPPA) was Constitutional. Chief Justice Rehnquist wrote the unanimous decision citing the commerce clause in a challenge by the state of Nevada. Since Nevada was selling personal information of driver license applicants, the Court ruled that they violated the commerce clause because some of that information can travel across state lines. Rehnquist also held that the DPPA law was not coercive in any matter. The Court’s imagination for creating new rights in the Constitution is only matched by the Court’s imagination to find applications for the commerce clause. In Hunter it was established that States can make bad laws. The Nevada law’s attempt to get more revenue was not much different than ObamaCare’s mandate to get more revenue – both uniquely bad in nature. In Reno the Court assumes some information will cross state lines without actual proof that it is happening. However, in Filburn, it was established that 0% of the goods have to cross state lines for it to be considered violating interstate commerce. The Court’s rationale was that since Filburn had more crops to feed his assets, less crops would have to travel to his state. The DPPA is further proof of how powerful and how imaginative the federal government and the Court has become in applying the commerce clause. There is one question the Court has refused to answer over years of strengthening the commerce clause: What State economic activity is free from any commerce clause intrusion?

The Lopez, Bond, and New York decisions provided some hope over the past two decades. There was one other promising case where the Court emphasized state rights. In the 1997 case Printz v. United States the Court held certain provisions of the Brady Handgun Violence Prevention Act of 1993 (BHVPA) were unconstitutional. BHVPA required state attorney generals to create a background check system to prevent the sales of guns to people prohibited to own guns such as felons. Printz objected to state officials being coerced into executing a federal law. Justice Antonin Scalia agreed that the federal government drafting state officials to run its programs and laws is unconstitutional citing New York v. United States. In his dissent Justice John Paul Stevens said the government could use the commerce clause to regulate handguns as well as the necessary and proper clause to pass any law it sees fit to carry out its enumerated powers (gun control is not an enumerated power of the federal government). The Printz ruling was instrumental to the Court applying the Second Amendment to the States in Heller v. DC or McDonald v. Chicago (Just as the Warren Court applied other Bill of Right amendments to the states in the 1960s). Hence, Justice Steven’s commerce clause claims in his Printz dissent were proven wrong.