The Commerce Clause as a Mechanism to Expand the Federal Government

Patient Protection and Affordable Care Act of 2010 (a.k.a. ObamaCare) supporters maintain that the act is constitutional under Article I, Section 8, Clause 3 of the Constitution, which is commonly referred to as the Commerce Clause. Article I, Section 8 describes Congress' powers. The clause states that Congress has the power, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Proponents of a strong federal government argue that "among the several states" grants the federal government power to regulate economic activity and impose laws on states and individuals for the general welfare of the country. The framers of the Constitution, however, had a much narrower intent of the clause.

The framers established a federalist system of government wherein power was divided between the federal government and the states. Federalism limited the power of the federal government and protected the sovereignty of the states and the individuals therein.

Interpreting the Commerce Clause to impose federal government mandates upon the states and individuals is antithetical to the framers' intent. Thus, using the Commerce Clause as an instrument to expand the power of the federal government erodes the original intent of the Constitution and fundamentally alters its authority.

The framers wrote the Commerce Clause to erode the trade barriers that states had erected to protect their own economic interests. Like national governments do in international markets, the states implemented their own protectionist policies within US borders. The framers understood that there would be negative consequences of protectionism between the states. During the Constitutional Conventional, therefore, the framers had little debate over the Commerce Clause as they intended that the federal government's role in interstate commerce would be to regulate -- to make regular, which meant to make an even, stable market -- the environment in which the states would facilitate interstate commerce.

Contrary to the original intent of the framers, the Commerce Clause has been the primary instrument by which the federal government has expanded its powers and control over the states and individuals. No other Constitutional clause has been more disputed in the courts.

For the first hundred or so years after the ratification of the Constitution, the Commerce Clause was used minimally as a mechanism to expand the power of the federal government. The only notable case was Gibbons v. Ogden (1824). The Heritage Guide to the Constitution illustrated that Ogden confirmed that Congress had the authority to regulate interstate commerce. In his opinion for Ogden, Chief Justice John Marshall wrote that commerce was not simply traffic but "intercourse between nations, and parts of nations, and all its branches." Marshall also confirmed the sovereignty of the states as he noted that intrastate commerce could not be regulated by Congress.

Major challenges to the Commerce Clause came with the increasing number of federal regulations during the late nineteenth century. The Oxford Guide to the Supreme Court of the United States illustrated that initial challenges to the clause upheld states' rights. In Peik v. Chicago and Northwest Railroad Railway Co. (1877), for example, the Supreme Court upheld a Wisconsin law that fixed rates on carriers operating within the state. By 1886, however, the Supreme Court reversed its Chicago and Northwest Railroad Railway Co. decision in Wabash, St. Louis and Pacific Railway Co. v. Illinois. The Illinois decision held that states must not regulate rates on railways that were part of an interstate network. With Illinois, the federal government gained power to regulate some intrastate affairs.

The Supreme Court decision in Champion v. Ames (1903) extended the Commerce Clause beyond economics to personal actions regarding morality. Ames held that Congress could regulate goods that crossed state lines even if it involved morality -- i.e. prostitution and other personal activities connected to commerce -- the regulation of which had been confined to the states.

The instrumentation of the Commerce Clause to expand federal power over the states and individuals increased significantly during the Great Depression. Many of the challenges to the Commerce Clause after Ames dealt with manufacturing and commerce and whether or not intrastate activities had a direct or indirect impact on interstate commerce. The Supreme Court upheld states' rights in issues regarding manufacturing and activities that indirectly affected interstate commerce until the Great Depression.

Supreme Court Constitutional ideology moderated in 1937 after President Roosevelt's court-packing plan. Roosevelt proposed the expansion of the number of justices on the Supreme Court. Roosevelt intended to add justices of his Constitution interpretive persuasion to moderate the conservative court. There was too much opposition to the plan for implementation, but the Supreme Court moderated nonetheless.

Soon after the court packing attempt Congress passed the Fair Labor Standards Act (1938), which secured collective bargaining for all employees producing goods for interstate commerce, and the Agricultural Adjustment Act (1938), which regulated agricultural production. Challenges to the national regulatory acts reached the Supreme Court in United States v. Darby Lumber Company (1941) and Wickard v. Filburn (1942), respectively. The Supreme Court upheld both acts under the Commerce Clause, even though they regulated production within the states. Darby Lumber Company overturned Hammer v. Dagenhart (1918), which had upheld states' rights to regulate labor laws within their borders.

The decades following Dagenhart saw some Supreme Court decisions that protected states' rights, but the liberal Supreme Court decisions favoring expanded federal power usually overruled previous decisions that protected states' rights. The composition of the Supreme Court has had a major influence on the Court's interpretation of the Commerce Clause. Liberal Supreme Courts have generally upheld expansive federal power. Conversely, conservative courts have generally upheld state and individual rights.

Proponents of ObamaCare have deemed it Constitutional under the Commerce Clause. Thus, the composition of the Court when ObamaCare reaches it will be of the utmost importance to overturn the law and secure the individual rights that ObamaCare would deteriorate. In the courts so far, two liberal judges have upheld the law and two other judges have struck down the law. Currently, the Supreme Court is composed of four liberal justices, four conservative justices and one moderate justice, Anthony Kennedy. The fate of ObamaCare will rest in Justice Kennedy's interpretation of the Commerce Clause vis-à-vis ObamaCare. The two recent Supreme Court decisions involving the Commerce Clause -- United States v. Lopez (1995) and United States v. Morrison (2000) -- favored state and individual rights.