4.5 QuickWrite-Federalism--Summary Analysis-Commerce Clause and the Evolution of Federal Power

• The interpretation of the Tenth and Fourteenth Amendments, the commerce clause, the necessary and proper clause, and other enumerated and implied powers is at the heart of the debate over the balance of power between the national and state governments.
• The balance of power between the national and state governments has changed over time based on U.S. Supreme Court interpretation of the constitution

The Powers of the Federal Government have been increased in response to the events of the Civil War, Populist Era, Progressive Era, and the Great Depression, and the New Deal.  The expansion of federal power have come from Congress's extensive use of the Necessary and Proper powers as well as the Commerce Clause.  These powers were enhance by the cooperation of  FDR's Supreme Court in ruling on New Deal Agencies and laws.

Commerce Clause

In the 20th century, the Commerce Clause Links to an external site. has become one of the most frequently-used sources of Congress's power, and thus its interpretation is very important in determining the allowable scope of federal government.^{[26] Links to an external site.} Complex economic challenges arising from the Great Depression Links to an external site. triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy.

Early Congresses rarely invoked the Commerce power. The Supreme Court’s first opportunity to determine its scope did not arise until Gibbons v. Ogden (1824). In that case, the Court held that Congress may regulate interstate commerce, but not commerce that doesn’t extend to or affect other states.

Over the next century, the Court reiterated that Congress’ Commerce power did not include regulation of production in anticipation of trade. In these decisions, the Court emphasized the distinction between commerce and other types of economic activity that are not commerce: “Without agriculture, manufacturing, mining, etc., commerce could not exist, but this fact does not suffice to subject them to the control of Congress” (Newberry v. United States, 1921).

A slight shift occurred in 1914, when the Court held that where interstate and intrastate aspects of commerce are so intermingled, the Constitution permits regulation of interstate commerce even if that results in incidental regulation of purely intrastate commerce. But in general, the Court’s view of Congress’ Commerce power remained unchanged. In 1935, the Court held that Congress may not regulate intrastate sales of poultry, and as late as 1936, the Court invalidated a federal law regulating labor because “the relation of employer and employee is a local relation.”

The Court’s century-old Commerce Clause jurisprudence ultimately bowed to far-reaching New Deal laws. In NLRB v. Jones & Laughlin Steel Corp. (1937), the Court upheld the National Labor Relations Act against a Commerce Clause challenge, holding that Congress may regulate intrastate production if it has a “close and substantial relation to interstate commerce.” And in United States v. Darby (1941), the Court declared that “[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states.”

In Wickard v. Filburn Links to an external site. (1942),in the context of World War II Links to an external site., the Court ruled that federal regulation of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm, i.e. fed to animals or otherwise consumed on the premises. The rationale was that a farmer's growing "his own" can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market.

In 1964 and 1971, the Supreme Court rejected Commerce Clause challenges to the application of civil rights laws to motels and restaurants, and to a federal criminal law prohibiting local instances of loan sharking. In these cases, the Court dismissed arguments that: the regulated activity was not commercial, Congress was legislating against moral wrongs, the activity was purely local, and the economic effect of the regulated activity was so small as to be trivial.

In United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court resisted further expansion, a reminder that even after the New Deal cases, Congress’ Commerce power still has outer limits. Because the federal laws in Lopez and Morrison (prohibiting possession of a gun near a school and gender-motivated violence, respectively) regulated local activity having no effect on interstate commerce, they were really exercises of the general police power that belongs exclusively to the states.

In United States v. Lopez Links to an external site. (1995),^{[29] Links to an external site.} a federal law mandating a "gun-free zone Links to an external site." on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it. This was the first modern Supreme Court opinion to limit the government's power under the Commerce Clause. The opinion did not mention the Tenth Amendment or the Court's 1985 Garcia decision.

Most recently, in Gonzales v. Raich Links to an external site. (2005),^{[30] Links to an external site.} a California woman sued the Drug Enforcement Administration Links to an external site. after her medical cannabis Links to an external site. crop was seized and destroyed by federal agents. Medical cannabis was explicitly made legal under California state law by Proposition 215 Links to an external site., despite cannabis Links to an external site. being prohibited at the federal level by the Controlled Substances Act Links to an external site.. Even though the woman grew cannabis strictly for her own consumption and never sold any, the Supreme Court stated that growing one's own cannabis affects the interstate market of cannabis. In theory the product could enter the stream of interstate commerce, even if it clearly had not been grown for that purpose and was unlikely ever to reach any market (the same reasoning as in Wickard v. Filburn). It therefore ruled that this practice may be regulated by the federal government under the Commerce Clause.