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III. The Power to Regulate Commerce

Published online by Cambridge University Press:  01 August 2014

Vincent M. Barnett Jr.
Vincent M. Barnett Jr.*
Affiliation:
Williams College
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Extract

The commerce clause has been a double-edged tool of constitutional interpretation from the earliest days of judicial review of state and federal legislative activity. It is at once a positive source of federal power and, in the absence of federal exercise of that power, a source of implied limitations on state legislation. Any consideration of trends of interpretation of the clause in the past decade must treat both aspects of the matter. In general, it may be said that expansive implications of the Wagner Act decisions in the spring of 1937 have been elaborated and broadened until the commerce clause is today an ample source of federal legislative authority to deal with a wide range of problems arising out of or having any substantial effect upon interstate commerce. No such clear generalization may be made with respect to the nature of the limitations which the unexercised commerce power imposes on state police power and tax legislation. But the tendency, not yet consistently dominant, seems to be in the direction of upholding much state legislation that would formerly have been ruled a burden on interstate commerce. It is, of course, unnecessary to labor the fact that state legislation incompatible with a valid federal exercise of the commerce power is unconstitutional.

Both the above generalizations require some further examination. The first can perhaps best be looked at in terms of (1) changing definitions of interstate commerce, (2) the reshaping of familiar formulæ for determining the reach of the power to regulate, (3) the abandonment of the “dual federalism” concept, and (4) the broad application of federal statutes to businesses alleged not to be in interstate commerce. Discussion of the second general problem may perhaps best be considered in terms of the gradual, and still wavering, emergence of what may be called the “leaveit-to-Congress trend” in the review of state legislation alleged to burden interstate commerce.

Type
Ten Years of the Supreme Court: 1937–1947
Information
American Political Science Review , Volume 41 , Issue 6 , December 1947 , pp. 1170 - 1181
Copyright
Copyright © American Political Science Association 1947

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References

1 8 Wall. 168 (1869).

2 U. S. v. Southeastern Underwriters Association, 322 U. S. 533 (1944). The same result was reached in Polish National Alliance v. NLRB, 322 U. S. 643 (1944).

3 The majority thought that Congress revealed no intent to except insurance from the general provisions of the Sherman Act, while three dissenters denied the act was intended to apply and were anxious that state laws regulating insurance companies continue to operate until Congress clearly took over the field. Congress later passed the McCarran Act of 1945 leaving state regulation of insurance companies in effect until superseded by federal law. This act was upheld in Prudential Insurance Co. v. Benjamin, 328 U. S. 408 (1946), and Robertson v. Calif., 328 U. S. 440 (1946).

4 U. S. v. Appalachian Electiic Power Co., 311 U. S. 377 (1940).

5 Phillips v. Guy Atkinson Co., 313 U. S. 508 (1941).

6 306 U. S. 1 (1939).

7 307 U. S. 38 (1939).

8 U. S. v. Rock Royal Coöperative, 307 U. S. 533 (1939); similar issues were raised in H. P. Hood and Sons v. U. S., 307 U. S. 588 (1939).

9 312 U. S. 100 (1941).

10 Wickard v. Filburn, 317 U. S. 111 (1942).

11 Consolidated Edison Co. v. NLRB, 305 U. S. 197 (1939). See also NLRB v. Fainblatt, 306 U. S. 601 (1939), in which the act was held applicable to a so-called “contract shop” in New Jersey which took cloth supplied by owners in New York, made it into garments, and sent them back to the owners in New York to be merchandised.

12 Kirschbaum v. Walling, 316 U. S. 517 (1942).

13 Maybee v. White Plains Publishing Co., 327 U. S. 178 (1946).

14 Martino v. Michigan Window Cleaning Co., 327 U. S. 173 (1946).

15 Boutell v. Walling, 327 U. S. 463 (1946). Other important cases involving application of the act were Okla. Press Pub. Co. v. Walling, 327 U. S. 186 (1946), and Roland Electric Co. v. Walling, 327 U. S. 657 (1946).

16 U. S. v. Wrightwood Dairy Co., 315 U. S. 110 (1942).

17 North American Co. v. SEC, 327 U. S. 686 (1945), and American Power and Light Co., v. SEC, 329 U. S. 90 (1946).

18 329 U. S. 90, at 99–100.

19 304 U. S. 307 (1938).

20 305 U. S. 434 (1939).

21 309 U. S. 33 (1940).

22 If there was any doubt that this was the tendency of the majority opinion in the case, the dissent by Hughes, Roberts, and McReynolds emphasized the emergence of the newer trend. On the non-discriminatory point, Hughes said: “It has long been held by this Court in the interest of constitutional freedom of that commerce that a direct tax upon it is not saved because the same or a similar tax is laid also upon intrastate commerce.”

23 McCarroll v. Dixie Greyhound Lines, 309 U. S. 176 (1940).

24 The more important ones were Nelson v. Sears, Roebuck and Co., 312 U. S. 359 (1941); Nelson v. Montgomery, Ward and Co., 312 U. S. 373 (1941); and Caskey Baking Co. v. Virginia, 313 U. S. 117 (1941).

25 Best & Co. v. Maxwell, 311 U. S. 454 (1940).

26 Freeman v. Hewit, 329 U. S. 249 (1946).

27 Joseph v. Carter and Weekes Stevedoring Co., 67 Sup. Ct. 815 (1947). In dissenting from the 5–4 decision invalidating the tax, Douglas urged that “the logic of words should yield to the logic of realities.” His formulation of the general concept herein discussed is as follows: “Unless formal doctrine is to be restored to this field, the label which the tax bears should not be controlling; and the tax should be sustained unless it evinces hostility to interstate commerce or in practical operation obstructs or impedes it.”

28 Independent Warehouses v. Scheele, 67 Sup. Ct. 1062 (1947).

29 E.g., International Harvester Co. v. Evatt, 329 U. S. 416 (1947); Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362 (1940).

30 E.g., Milk Control Bd. v. Eisenberg Farm Products, 306 U. S. 346 (1939); Terminal R. R. Assn. v. Brotherhood of R. R. Trainmen, 318 U. S. 1 (1943).

31 An interesting exception to this must be noted in connection with two important cases in which the Court used the unexercised commerce power to protect what were essentially civil liberties. See Edwards v. California, 314 U. S. 160 (1941), and Morgan v. Virginia, 328 U. S. 373 (1946).

32 Parker v. Brown, 317 U. S. 341 (1943).

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