1. Lecture 24 The Commerce Power
Part 1: Overview and Foundations

2. This chapter and lecture
The chapter deals with the powers Congress has under the Commerce Clause
It is also long
Pages
19 major cases
This lecture will provide an overview and looking into the foundations of this power
Pages

3. Cases this Chapter Gibbons v. Ogden (1824)
United States v. E.C. Knight Company (1895)
Stafford v. Wallace (1922)
Champion v. Ames (1903)
Hammer v. Dagenhart (1918)
Schechter Poultry Corp. v. United States (19335)
National Labor Relations Board v. Jones McLaughlin Steel Corp. (1937)
United States v. Darby (1941)
Wickard v. Filburn (1942)
Heart of Atlanta Motel, Inc. v. United States (1964)
United States v. Lopez (1995)
United States v. Morrison (2000)
Gonzales v. Raich (2005)
National Federation of Independent Businesses v. Sebelius (2012)
Cooley v. Board of Wardens (1852)
Southern Pacific Company v. Arizona (1945)
Hunt v. Washington State Apple Advertising Commission (1977)
Maine v. Taylor (1986)
Granholm v. Heald (2005)

4. Overview The language Congress shall have the power to …
Clause 3- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Questions to consider
What is regulation?
What is commerce?
What is interstate commerce?
What powers does this grant Congress?
What powers remain with the states?
This chapter addresses these questions topically

5. Gibbons v. Ogden (1824) Gibbons v. Ogden (1824) Background
Congress immediately seizes the power over commerce with other nations
But they already had the power to impose tariffs
This was only to the Congress, not states
Congress was slow to take reigns over interstate commerce
States retain power over intrastate commerce
Remember at the time, people didn’t freely move as much as they do now

6. Gibbons v. Ogden- II Background of the case
1798- The State of New York grants Livingston a monopoly over steamboats over the entire state, including New York Harbor and the Hudson River
The reason initially was that it was not profitable, but it later became so
They then got a monopoly over the Port of New Orleans
In response the New York monopoly, other states retaliated
Especially with New Jersey
Ogden and Gibbons formed a partnership to transport passengers from New Jersey to NYC
New York monopolists pressured Ogden to terminate the partnership
Gibbons joined with Cornelius Vanderbilt- the entered the waters in violation of the monopoly
Ogden convinced New York courts to enjoin Gibbons from entering New York waters
Gibbons appeals to the Supreme Court

7. Gibbons v. Ogden- III Question: Arguments
Did New York exercise authority in an area reserved to Congress- regulation of interstate commerce?
Arguments
For Gibbons (Violates Commerce Clause)
The commerce power is not exclusive to Congress, but in this case it is a federal power and thus does not remain with the state
The Constitution decided to transfer regulation of commerce from states to the federal government
Congress may establish ferries and turnpikes and may regulate in other ways that touch the interior of states

8. Gibbons v. Ogden- IV Arguments For Ogden (state power)
All powers must be expressly delegated or they are reserved to the state under the Tenth Amendment
The commerce power is concurrent, so long as the state law does not interfere with the Constitution or a federal law
The power is limited to between states, thus not available for Congress to regulate within a state
This law does not regulate commerce, but internal trade and right of navigation within a state

9. Gibbons v. Ogden- V
Chief Justice Marshall writes for a unanimous Court
Commerce is more than traffic, it is intercourse (more than buying and selling)
It includes navigation
Everyone at the time understood it to include navigation
It includes all trade with other nations
Commerce among the states does not stop at their external boundaries, but may be introduced into their interiors
But not to things completely internal
Does it affect other states?
If yes, Congress can regulate
If no, Congress cannot regulate

10. Gibbons v. Ogden- VI More from Marshall Power to regulate
Can states regulate commerce with foreign national and among the states while Congress is regulating it at the same time?
When in conflict the state law must yield to the federal one
State laws inhibiting vessels from free passage on the waterways are in direct collision with the federal law

11. Next Lecture
We will move to the Commerce power during the pre-New Deal era
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