Provided to students at the University of Münster and Unversity of Osnabrück.

1. U.S. Constitutional Law
Legislative Power Part II:Legislative Power Part II:
The Commerce ClauseThe Commerce Clause
Text in RED are words you should learn
Text in BLUE are links to additional resources

2. Goals of This Session
●
Understand the meaning of the Commerce
Clause.
●
Learn about the basics of precedent.
●
See how Supreme Court precedent can
change.

3. Structure of this session
I. Introduction to precedent
II. Historical Interpretations of the Commerce
Clause
III.The Lopez Case
IV.Applying the Lopez Standard

4. Commerce Clause in Context
●
Topic –> express powers of Congress.
– REMEMBER the concept of limitedlimited
governmentgovernment!
●
We already discussed the express spending
and taxing power.
●
Liberal interpretation of commerce (this
week) and necessary and proper (next
week!) clauses have expanded federal
power.

5. U.S. Constitutional Law
A Detour: Precedent
In the U.S. Court System

6. The Meaning of PrecedentPrecedent
Generally
●
“precedent” = something that has
happened before
– Also means an event which defines a
standard.
●
“Unprecedented” is something that is
uncommon or beyond standard.
– “Spam levels run to unprecedented heights”
●
recent headline from PC Magazine

7. 04/06/18 7
Legal PrecedentLegal Precedent
●
Past cases with similar
legal issues and facts.
●
Compares current case
with past cases.
●
Legal principles/rules
from past cases are
then applied to current
case.
●
Sometimes called
AuthorityAuthority

8. 04/06/18 8
Stare DecisisStare Decisis
●
Latin for “to stand by things decided”
●
Rule established by prior court that
must be followed by current court.
– Often referred to as “binding precedent”
●
Two Kinds:
– VerticalVertical: lower courts must follow rules
from higher courts
– HorizontalHorizontal: courts at same level must
follow own past rules.

9. 04/06/18 9
Stare Decisis Illustrated
Court of AppealsSimilar facts
and law
Horizontal Stare DecisisHorizontal Stare Decisis
Vertical stareVertical stare
DecisisDecisis
Similarfacts
andlaw
NOTE – the operation of
horizontal stare decisis in the
U.S. federal system is far more
complicated than this. We will
discuss it further when we
discuss the Judicial Branch.

10. 04/06/18 10
Stare Decisis the U.S.
Constitutional Law
●
All lower courts are
bound by higher court
decisions. (vertical)
●
U.S. Supreme Court is
not bound by its own
decisions. (no
horizontal)
●
Supreme Court can
review state court
decision based on
federal law.
We will discuss U.S. Court system in
greater detail in another lecture

11. 04/06/18 11
Cliqr Question
●
A past case is precedent when it:
(a) Was decided by the same court
(b) Has similar facts and legal issues
(c) Involves the same parties
(d) Is designated as precedent by the legislature

12. 04/06/18 12
Elements of Case
●
Court – one that creates binding precedent?
●
Facts – help determine if case is precedent
●
Issue – the legal question before the court
●
Holding – the rule used/developed by the
court to decide the case
– This is what will be applied to the current case.
●
Rationale – why the court used the rule
– Can be used to distinguish!

13. 04/06/18 13
Precedent in German Courts?
●
§ 31 BVerfGG
– (1) Die Entscheidungen des
Bundesverfassungsgerichts binden die
Verfassungsorgane des Bundes und der
Länder sowie alle Gerichte und Behörden.

14. 04/06/18 14
Avoiding Precedent
●
Ways to avoid
precedent:
– Overrule
– Distinguish
– Disapprove

15. 04/06/18 15
Disapproving Precedent
●
Lower court refuses to apply binding
precedent.
– Decision likely to be appealed to higher court
that made the binding precedent.
– Goal is to convince higher court to overrule the
precedent.
●
Lower courts rarely do this!

16. 04/06/18 16
Overruling
●
Some courts cannot overrule themselves =
horizontal stare decisishorizontal stare decisis.
– Federal Courts of Appeals cannot overrule
themselves!
●
But they can overrule decisions by District Court
●
The Supreme Court can always overrule
itself but rarely does.
– Can also overrule decisions by Court of Appeals

17. 04/06/18 17
General Categories of
Overruling
●
Renovative - when there has been a change in
society justifying a new rule.
●
Corrective - when the first rule was a mistake
●
Legislative - the make up of the court is new,
thus new ideas and beliefs lead to new rules

18. 04/06/18 18
DistinguishingDistinguishing
●
identifying aspects of a previous decision
that would make it inappropriate to use its
ratio in the present case.
– Aspects = different facts or rationale (reasons
for decision).
●
Most common way of avoiding precedent!

19. 04/06/18 19
Cliqr Question
●
Which of the following is NOT a method of
avoiding precedent:
a) Reversing
b) Distinguishing
c) Overruling
d) Dissenting

20. 04/06/18 20
Why Discuss This Now?
●
Commerce Clause jurisprudence provides
good example of how precedent changes
and develops.
– Note precedent is source of common law (judge
made law) in common law legal systems.
– How we use precedent is the same in the
constitutional law context.

21. 04/06/18 21
The Many Views of
The Commerce Clause Power
Achtung! – pay close attention.
Some of these cases were later overruled by the court.

22. The Commerce Clause
●
The U.S. Constitution empowers Congress
“[t]o regulate Commerce with foreign
Nations, and among the several States, and
with the Indian Tribes.”
– U.S. Const. Art. I, Sec. 8
●
Questions:
– What is commerce?
– What does “among the several states” mean?

23. Gibbons v. Ogden (1824)
●
Odgen given monopoly by New
York for passenger transit between
N.Y. and N.J.
●
Gibbons given right by Congress
for same route.
●
Odgen claims State of New York
has right to grant monopoly and
this should not be interfered with
by Congress.
– Put differently, Congress does
not have the power to interfere.
Above, a 19th century
rendition of the Port of
New York

24. Understanding the Case
●
The issues here involve:
– Is the movement of people commerce?
●
If not, then Congress cannot grant the license here.
●
If so, then Congress can grant the license.
– When Congress and States both have the
power to act, is the federal power supreme?
●
If the federal power is supreme, then Gibbons wins.
●
If state regulations are granted equal weight, Ogden
likely wins.

25. The Ruling of the Court
●
Federal commerce
power is supreme
●
Within power of
Congress
– Commerce =
navigation
– Navigation =
movement of people
by boat
– Thus, moving people
= commerce!

26. The Next 50 Years
●
Congress doesn’t use this power
●
Most regulation is done by states
●
Court deals mostly only with:
– whether states can regulate when Congress
choose not to OR
– whether states discriminate against businesses
from other states.

27. U.S. v. EC Knight (1885)
(overruled by later decision)
●
Facts:
– Federal law bans
monopolies.
– E.C. Knight owned
98% of sugar
production.
●
Question:
– can Congress prohibit
monopolies in
manufacturing of
goods?
●
Holding – NO.
– Commerce =
distribution of goods but
not manufacturing.
– Manufacturing only
has indirect impact
on distribution of
goods.
– Congress can only
regulate direct
impacts.

28. Hammer v. Dagenhart (1918)
(Overruled by later decision)
●
Facts:
– Federal law prohibits
child labor.
– Father of 15 year-old
claims Congress lacked
power because labor is
part of manufacturing.
●
HOLDING
– Commerce only deals
with distribution of
good.
– Labor is part of
production, not
distribution of goods.
– States can regulate
production but federal
government cannot.

29. Cliqr Question
●
These cases:
a) Expand the power of Congress
b) Limit the power of Congress
c) Have no effect on the power of Congress

30. “The Switch In Time That
Saved Nine”
●
Cases between 1933
and 1935 struck down
“New Deal” Laws.
●
Pres. Roosevelt then
threatened to “pack
the Court.”
●
Two Justices
changed their views.

31. NLRB v. Jones (1937)
●
Facts: Congress
passes law regulating
labor practices.
●
Question: Can
Congress regulate
work condition at
companies engaged
in interstate
commerce?
– YES.
●
Holding: Yes
– Collective bargaining
rules = fewer strikes =
fewer disruptions to flow
of goods among the
states.
– Whether labor unrest
has a direct or indirect
effect on the movement
of goods is not relevant.
●
Abandons rationale in
E.C. Knight case.

32. U.S. v. Darby (1940)
●
Federal Law regulates
working conditions at
companies engaged in
interstate commerce.
●
Commerce is NOT just
about distribution of goods.
– expressly overturns
Hammer v. Dagenhart
– Rationale and
conclusion in that case
was wrong!
Children working on a
weaving loom

33. Wickard v. Filburn (1942)
●
Facts:
– Local farmer grew more
wheat personal
consumption than
allowed by law.
●
Holding:
– Even activity that looks
local can be regulated
when it affects interstate
commerce.
– Aggregate effect
principle.
●
Where is the effect?
– wheat needed above limit
should have been
purchased in interstate
market for wheat.
– By growing more, he was
taking away business from
the market.
– When thousands of others
do this, effect is large.

34. Heart of Atlanta Motel v. U.S.
●
1964 Civil Rights Act
bans discrimination in
public accommodations
by private parties.
●
Local Atlanta hotel
refuses to give a room to
black family.
●
Does Congress have the
power to regulate the
actions of a local hotel?
●
“[T]he power of Congress to
promote interstate commerce
also includes the power to
regulate the local incidents
thereof, including local
activities in both the States of
origin and destination, which
might have a substantial and
harmful effect upon that
commerce.”
●
Individual discrimination by
local business owners, when
take together, have effect on
commerce.

35. Cliqr Question
●
These cases:
a) Expand the power of Congress
b) Limit the power of Congress
c) Have no effect on the power of Congress

36. U.S. v. Lopez
●
Congress passes law
prohibiting guns on
school grounds.
●
Student is arrested
for violating the law.
●
See “Case Brief” on
StudIP

37. Cliqr Question
●
Lopez changed the way the commerce
clause is interpreted by:
a) Returning to the very limited interpretation the
court used prior to 1937
b) Demanding that the activity has a substantial
effect on interstate commerce
c) Abandoning the idea “aggregate effect” to
reach purely local activity
d) It didn’t change the way the clause was
interpreted

38. Cliqr Question
●
Did Congress have the power to create the
civil remedy in Violence Against Women
Act ?
– Yes
– No
●
Did Congress have the power to stop animal
fighting via the Animal Welfare Act?
– Yes
– No

39. Testing the Limits
●
Please read the article in StudIP from N-TV.
– “ob die US-Verfassung dem Kongress und der
Regierung das Recht gibt, Bürger mit einem
Bußgeld zum Abschluss einer Kranken-
versicherung zu zwingen.”
– "Die Frage ist, ob der Kongress zum ersten Mal
in unserer Geschichte die Macht hat, die
Menschen in eine Handelsbeziehung zu
zwingen."

40. Testing the Limits
●
President Obama’s health care reform
requires citizens to buy private health
insurance or face a penalty (as we saw in the lecture
last week this was later deemed a tax by the court).
– Does Congress also have the power under the
Commerce Clause to force people to buy
private health insurance?