10th Amendment

The Commerce Clause: Or How the Federal Government Came to Control (Almost) Everything

Earlier this year the Supreme Court issued a ruling in Sandifer v. United States Steel Corp.  At issue was whether employees must be paid for time spent donning and doffing protective work clothing. The Court ultimately held that if a collective bargaining agreement deems dressing and undressing to be noncompensable, employers can rely on this agreement and need not compensate employees for this time.

Now, legal minutia aside, why is a federal court deciding this at all? The short answer is the Commerce Clause. The Fair Labor Standards Act (FLSA) which governs employee pay and is the basis for Sandifer, was upheld, like so many bills, as a valid exercise of the commerce power.

Article I, Section 8 of the Constitution grants Congress authority to regulate commerce among the several States. When discussing this topic in the Constitutional Convention, it is evident that the founders were concerned about states erecting trade barriers against each other such as import and export taxes. The ratification debates indicate that the American population also shared a narrow conception of the word “commerce.” Prior to the New Deal, the Supreme Court itself limited the application of the Commerce Clause by distinguishing between “production,” which did not fall under the Commerce Clause, and “commerce,” which did. (See United States v. E.C. Knight Co.)

However, following President Roosevelt’s infamous plan to add Justices to the Supreme Court in order to obtain more favorable rulings for his New Deal legislation, two important changes happened to Commerce Clause jurisprudence. First, the Court expanded the definition of commerce to include the channels of interstate commerce (like roads and telephone lines), instrumentalities of interstate commerce (any person or thing involved in commerce), and any activity with a substantial effect on interstate commerce. Second, the Court introduced the concept of rational basis review—the idea that (a few favored constitutional protections excepted) so long as the court can conceive of a rational basis for the legislature to enact a law, the Supreme Court will defer to the legislature’s assessment of whether a law pertains to commerce. These two changes have essentially given the federal government the power to regulate anything and everything without meaningful judicial review.

If you think this is an overstatement, here are few examples of things that have been regulated under the Commerce Clause:

Growing food on your own property for your own consumption. In Wickard v. Filburn (1942) a farmer grew 239 bushels of wheat over his government-allowed quota. The Court held that even though Filburn’s wheat was for his own use and would never cross state lines or even enter the stream of commerce, the government could nevertheless regulate it under the Commerce Clause. The Court reasoned that if all farmers grew additional wheat for personal consumption, the net effect could affect the national wheat market.

Who you choose to serve in your own family restaurant. In Katzenback v. McClung (1964) the court upheld the Civil Rights Act of 1964 not under the 13th, 14th, and 15th Amendments, which legitimately gave the federal government the authority to eliminate the vestiges of slavery, but under the Commerce Clause. Ollie McClung owned a small, family-owned restaurant in Birmingham, Alabama that only offered take-out service to African Americans. After admitting that Ollie’s itself had virtually no impact on interstate commerce, the Court nevertheless upheld federal regulation of Ollie’s, reasoning that the issue of race discrimination in total has an impact on interstate commerce.

Perhaps the most absurd application of the Commerce Clause regulated a handful of wolves living on private property.  In the late 1980s the Department of Fish and Wildlife Service released seventy-five endangered red wolves. Forty-one of these made their home on privately-owned land where they became a nuisance to ranchers like Charles Gibbs. Gibbs argued that the Endangered Species Act, as applied to this situation, exceeded the scope of the Commerce Clause since the wolves in question had no impact on economic activity—even construed in its broadest sense. However, in an astounding feat of mental gymnastics the Court boldly declared in Gibbs v. Babbit (2000) that, “The relationship between red wolf takings and interstate commerce is quite direct—with no red wolves, there will be no red wolf related tourism, no scientific research, and no commercial trade in pelts.” This despite the fact that an animal which it is illegal to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” probably will not generate a lot of tourism, research, and pelt money.

If growing food on your own land, refusing to sell a sandwich to someone in your small restaurant, and killing a wolf that is eating your cattle fall under the auspices of the Commerce Clause, there is really very little that cannot be construed to do so, even whether or not you are paid for donning your work clothes.

So next time you wonder how the federal government got the authority to do something, the Commerce Clause is a good guess.