The Evolution of the Commerce Clause (Part IV)

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. 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 v Pittsburg in 1906 it was established that States can make bad laws (as long as they did not violate the liberty of individuals). 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 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 while strengthening the commerce clause: What State economic activity is free from any commerce clause intrusion?

The 1996 case between Seminole Tribe v. Florida was a very interesting one. In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA) requiring States to negotiate with Indian Tribes for gaming contracts and licenses. However, Florida refused to negotiate a contract with the Seminole Tribe and they filed suit for their failure to meet IGRA regulations allowed by the commerce clause. The Court ruled that Congress did not have the power to overrule Florida’s State sovereignty immunity protected by the Eleventh Amendment (maybe giving credence to the Ninth Amendment). This overruled the 1976 case between Fitzpatrick v. Blitzer when the Court held that State sovereignty immunity can be overruled via the Fourteenth Amendment. In Pennsylvania v. Union Gas the Court held that State sovereignty immunity can be overruled via the commerce clause. In the 1812 case between Schooner Exchange v. M’Faddon the Court held that a state has absolute and exclusive jurisdiction within its territory – State sovereignty immunity. From M’Faddon to Seminole Tribe it seems the Court has come full circle.

In the 2000 case between United States v. Locke the Court held certain state regulations for oil tankers and barges were preempted by federal law imposed by the Coast Guard using the Supremacy clause and commerce clause. In 2006 in United States v. Stewart the Court held that machine guns can be regulated under the commerce clause.

Gonzales v. Raich was decided in 2005 where the Court ruled that Congress has the power to regulate homegrown marijuana even if it is used for medical purposes. Thus the Court upheld the 1937 Marijuana Tax Act and the Controlled Substance Act. The Court cited Wickard v. Filburn where it was decided the government could regulate personal crops and cultivation. Scalia was wrong when he cited the necessary and proper clause for granting Congress this power. Raich changed the Court’s position over several recent cases trying to undo some of the vast limits created by the FDR administration for the commerce clause (Lopez and Morrison). In United States v. Lopez in 1995 the Court ruled that Congress could not regulate carrying an unloaded handgun in a school striking down the 1990 Gun-Free School Zones Act. The majority ruled that Lopez was a non-economic issue whereas most commerce clause cases are economic in nature; the gun had not been involved in interstate commerce; and finally there was no link between guns and education. Justice Breyer dissented and worried about the cumulative effect of thousands of students carrying handguns in schools (not really realistic and the guns are unloaded). He further argued that Congress has a “rational basis” for acting even if the commerce clause was not actually in play. The United States v. Morrison case of 2000 the Court decided parts of the federal Violence Against Women Act (VAWA) of 1994 were unconstitutional. Morrison was accused of rape but a Virginia grand jury refused to indict him because of a lack of evidence. The victim in the case then moved to sue Morrison under the VAWA. The Court correctly stated that there is a distinction between what is a local and what is a national crime or issue.

In the National Federation of Independent Business v. Sibelius in 2012 (ObamaCare), the Court threw a curveball. Although the Court held that the “mandate” to force Americans to buy insurance was unconstitutional and therefore, the commerce clause and necessary and proper clause were not applied properly in this law. However, Chief Justice Roberts provide Congress an out by carefully changing the wording in the “mandate” section to be a “non-coercive tax” making the law constitutional under Congress’s ability “to lay and collect taxes”. The Court also decided that the federal government could not withhold Medicaid funding if states decided not to implement ObamaCare – this was coercive and illegal. Roberts contended it was not the role of the Supreme Court to decide if a law is a good one or bad one, just whether it is legal or not.