Hello, and welcome once again to The
Global
Student's Introduction to the Law of the
United States.
I'm Professor Pedro A Malavet of the Levin
College of Law.
Continuing our discussion of the American
Constitution, today I give my second
session on the growth of federal authority
by discussing the Commerce Clause.
As I mentioned the last time, the growth
of federal power has been incremental.
And I would suggest that there are two
fundamental periods of growth.
Last time we spoke about the period
immediately after the American Civil War.
Today we talk about the modern period in
which the congress has been able to
use the Commerce Clause to occupy fields
that were previously essentially reserved
to the states.
The commerce clause of the constitution.
The Commerce Clause allows the
national government to regulate interstate
commerce.
And, the Supreme Court has ruled that,
that does in fact allow
the national government to regulate
activities that
are only within the state, meaning
intra-state activity as
long as it can be found that the
cumulative effect of those activities can
have an effect on the national economy and
so that Supreme Court ruling in 1942
was significant.
It significantly expanded the authority of
the national government to regulate what
is now deemed to be interstate commerce,
even though it was exclusively
intra-state activity.
The Commerce Clause has been especially
significant in
the promotion of civil rights in the
United States.
In particular, we talked last time about
Plessy v Ferguson, about
the decision of the Supreme Court, that
states had the right to permit racial
segregation and in fact, to legally
require racial segregation.
We also discussed that private individuals
were permitted to behave in bigoted ways.
And therefore, private businesses could
refuse
to sell to African Americans, for example.
Well, the use of the Commerce Clause
allowed the
United States Congress to pass legislation
which invalidated private discrimination.
The Heart of Atlanta motel case in 1964,
the
court approved of a federal law that
banned the
racial discrimination in public
accommodations even if they were
privately owned, because that had an
effect in interstate commerce.
Importantly the court found that not only
was this a matter of commerce but also
of an interstate right to travel, which
is considered quite significant by the
Supreme Court.
The mobility of Americans, the ability to
travel within the entire
national territory is so significant that
the court said that, unduly
interfering with it, which racial
segregation and accommodations did, was
something
that the Congress could invalidate by
statute and indeed the Congress did.
The Katzenbach case the Supreme Court
accepted Congress' explanation
that racial discrimination, in fact, does
effect interstate commerce.
That if you are black and not able to stay
at a
hotel in Atlanta it makes it difficult for
you to travel there course.
If you are not able to take on gas at a
particular gas
station, you're unable to eat at a
particular restaurant, because of the
color of
your skin, that limits your mobility
within the United States, and the court
ruled that the Congress could invalidate
acts
that enforce racial segregation in that
manner.
[BLANK_AUDIO]
Recently, however, the current Supreme
Court has
limited the Congress' authority under the
commerce clause.
United States versus Lopez in 1995 based a
decision of the Supreme Court of the
United States that limits Congressional
authority in
exercising its legislative powers under
the Commerce Clause.
Specifically, the court struck down a
federal criminal law that
punished possession of a handgun in or
near any school.
The effects argument that was articulated
by the United States Congress meaning
that criminals use firearms in violent
crimes and that would have an economic
impact on the peoples' right to travel
because they would be discouraged from
traveling to places with high crime rates
was rejected by the Supreme Court.
And the court ruled that this interferes
with
the states' authority to regulate most
criminal activity.
In fact, the states have general police
power to regulate criminal activity.
So the fact that violent crime in
or around schools, could impede people
from traveling
or, it could limit the educational
processes
which means that, our citizens are less
productive.
All of those are articulations of a
national effect that were made by
the congress were rejected by the Supreme
Court in the United States versus Lopez.
The Supreme Court however did indicate
that there are areas that Congress may
regulate under the Commerce Clause,
specifically the
use of the channels of interstate
commerce.
For example, the congress can continue to
invalidate
racial discrimination in public
accommodations for travel, because that
does in fact affect the channels of
interstate
commerce, the ability to use the national
road system.
The instrumentalities of interstate
commerce may
also be regulated by the Congress.
For example, the Congress may set rates
that can be
charged by railroads even if they're just
for intrastate transportation.
There can be national legislation
regarding what
railroads may charge because they're
essential to transport.
Activities with a substantial relation to
interstate commerce may
also be regulated by the Congress under
the Commerce Clause.
Labor practices of employees who have a
substantial effect.
The-, this is important, because the
Congress can
say that if you have more than a
predetermined number of employees, you can
be subjected
to certain regulations like, say, national
health care.
The other area that is also often
an example of commercial activity is
agricultural activity.
The Cumulative-Effect Doctrine, which we
have
already discussed, stated even though
someone
is raising a crop for their personal
consumption in the state of Florida.
The cumulative effect of small farms can
add up to something that
has an effect on the national economy and,
therefore, Congress may regulate that.
However, the Supreme Court has issued some
limits on congressional authority to
regulate commerce.
In New York versus the United States, the
court invalidated a federal law that
attempted to encourage states to develop a
system for the disposal of hazardous,
radioactive waste.
This has been a continuing problem.
There's a lot of radioactive waste that is
produced in all of
the states, and how to dispose of it is a
major challenge.
Congress attempted to develop a system by
stating that if states failed to develop a
plan, that they would acquire ownership of
any
radioactive waste that was generated
within the state.
The Supreme Court said that that was going
too far.
That the legislature of the United States
was
in effect commandeering the legislatures
of the states.
Meaning that the federal government was
forcing the
states to spend their money in something
that
the federal government wanted them to
spend their
money but the federal, the state
government did not.
[BLANK_AUDIO]
Other limits imposed on the Commerce
Clause,
exercise of power by the legislature,
involve guns.
In Printz versus the United States the
court ruled that
the anti-commandeering doctrine also
applied not only to state legislatures.
Allocation of funds, but also to the use
of
state agencies, and specifically found
that the federal legislature could
not require, could not mandate that local
police conduct criminal
background checks on anybody who wanted to
buy a weapon.
However, Congress does have the power of
the purse,
as we discussed very early on in this
series.
And the Supreme Court has ruled that while
Congress cannot mandate.
Regulation in certain areas, it can entice
the state
governments to do certain things by
offering them money.
And so, basically, the Congress can choose
to reward
states for complying with federal
regulation, with federal conditions.
This is so called conditional spending.
The federal government says, to this day,
if you do this which we wish you to do, we
will give you x amount of money.
The Congress, of course, has the power to
tax and spend.
So, that is the exercise of its power to
spend money.
Not the Commerce Clause, so therefore the
Commerce Clause cases do not limit this.
In addition to that, the Congress has the
authority to promote the general welfare.
And that means that it can encourage the
states to do certain things that benefit
its citizens.
And then the 16th Amendment to the
Constitution
of the United States, which enables the
national income
tax also gives the congress the authority
not only
to collect those taxes, but also to spend
them.
So a couple of examples of conditional
spending.
In the United States, unlike many places
in the world, the
drinking age, the minimum age for having
alcoholic beverages, is 21.
And the reason for that is that congress
passed a, included
in a federal highway authorization bill
the statement that if the states
increase their drinking age, which
normally were 18 years, to 21, they
would get additional amounts of funding to
build highways within their states.
And therefore, most states in the United
States, in
fact, have a 21 age, 21 year old drinking
age.
Other exam, another important example is
social welfare.
There are many system of welfare benefits
for poor people.
The food benefits for people who cannot
afford food and other kinds
of benefits, which exist within the states
because the federal government has
told them, if you implement systems like
this, we will give you,
in most cases, billions of dollars in
order to implement those programs.
[BLANK_AUDIO]
Mobility.
This is the National Highway System of the
United States.
We are a big nation of over 300 million
people and of great geographic extension.
And we've spoken about the fact that we
have
50 sovereign states and 6 somewhat
sovereign territorial possessions.
So is that compatible with mobility?
Well in fact, it is.
The fact is that Americans have an
entitlement to travel freely from one
state to another, and in need to establish
residency In any state of their choice.
The right to travel has been recognized by
the Supreme
Court, even though it's actually not
expressly in the Constitution.
And this is rather curious, because the
Articles of Confederation, in
fact, included a protection, an express
protection of the right to travel.
So it is curious that the founding fathers
did
not include it expressly in the
Constitution of 1789.
But the Supreme Court resolved that it is,
in
fact, a fundamental right given to any
American citizen.
And, it found from the, multiple ways as
for it, in the Constitution itself.
And so therefore, it has used this right
to travel to
invalidate, mostly state imposed burdens
on that right, even if indirect.
Cases.
Crandall versus Nevada, a state tax on
persons
traveling by public transportation was
ruled to be unconstitutional
traveling in public transport should not
be subject to the state tax.
In Shapiro versus Thompson, a six-month
residency
requirement for, to obtain welfare
benefits also unconstitutional.
So I said, the right to travel guarantees
your right to temporarily pass through a
state.
But also your right as an American to move
there, to buy a
house, to rent a home, and to put your
children in school there.
And, if you're eligible for it, to receive
welfare benefits.
So the state cannot discriminate against a
previously non-resident
citizen who chooses to move to that state,
the Supreme Court has found.
In addition to the Express Commerce Clause
cases,
you also have the so-called Dormant
Commerce Clause cases.
So to explain that, the Commerce Clause
can be
thought of as an active commerce clause,
meaning that
there has been actual legislation passed
by the United
States Congress on the basis of the
Commerce Clause.
And then, the dormant one by definition
means that Congress has not
acted to enable legislation, or to pass
any legislation in that particular area.
And yet, the United States Supreme Court
and the federal courts more generally,
used the mere presence of the
Commerce Clause to invalidate certain
state statutes.
It's basically anything that would limit A
national common market within the United
States.
And so this national common market that is
being protected
by the Supreme Court, and by the federal
courts through the
application of the dormant commerce clause
Establishes what
many Europeans would find perfectly normal
in the era of the European Union.
That there's free movement of goods, free
movement of people
throughout the territory of the member
states of the European Union.
Well, there's something quite similar here
in the United States.
There's free movement of people, free
movement of
goods within all the States of the Unites
States.
This nation is a common market, the
Supreme Court has ruled, in which state
lines can not be made barriers to the free
flow of both raw materials
and finished goods in response to the
economic laws or, of supply and demand
and so the states are simply not permitted
to limit that national common market.
The court uses the Dormant Commerce Clause
to invalidate protectionist legislation.
It normally, we talk about protectionist
legislation as being a
sovereign power, meaning that it's usually
a nation-state that exercises it.
Well, in the United States, is the states
that
tried to protect intrastate activity from
out of state businesses.
And so the court has used the dormant
commerce clause to
invalidate legislation that discriminates
against, or
unduly burdens out of state businesses.
Interestingly and importantly this in,
includes
not just American businesses from another
state, but international firms that try to
do business within a American state.
And the Supreme Court has increasingly
used the dormant
commerce clause to invalidate
protectionist
state legislation in recent years.
And this brings to a conclusion our series
on the Constitution of the United States.
I have attempted to lay out for you the
very fundamental, very basic concepts of
our Constitution, and we will provide
supplementary
materials on our Coursera course page for
you.
But I will continue to lay out the
basics of the American government in a
future series
on the judicial system and on the American
adversary system, particularly focusing on
the American oral trial.
For now, thank you.
Global
Student's Introduction to the Law of the
United States.
I'm Professor Pedro A Malavet of the Levin
College of Law.
Continuing our discussion of the American
Constitution, today I give my second
session on the growth of federal authority
by discussing the Commerce Clause.
As I mentioned the last time, the growth
of federal power has been incremental.
And I would suggest that there are two
fundamental periods of growth.
Last time we spoke about the period
immediately after the American Civil War.
Today we talk about the modern period in
which the congress has been able to
use the Commerce Clause to occupy fields
that were previously essentially reserved
to the states.
The commerce clause of the constitution.
The Commerce Clause allows the
national government to regulate interstate
commerce.
And, the Supreme Court has ruled that,
that does in fact allow
the national government to regulate
activities that
are only within the state, meaning
intra-state activity as
long as it can be found that the
cumulative effect of those activities can
have an effect on the national economy and
so that Supreme Court ruling in 1942
was significant.
It significantly expanded the authority of
the national government to regulate what
is now deemed to be interstate commerce,
even though it was exclusively
intra-state activity.
The Commerce Clause has been especially
significant in
the promotion of civil rights in the
United States.
In particular, we talked last time about
Plessy v Ferguson, about
the decision of the Supreme Court, that
states had the right to permit racial
segregation and in fact, to legally
require racial segregation.
We also discussed that private individuals
were permitted to behave in bigoted ways.
And therefore, private businesses could
refuse
to sell to African Americans, for example.
Well, the use of the Commerce Clause
allowed the
United States Congress to pass legislation
which invalidated private discrimination.
The Heart of Atlanta motel case in 1964,
the
court approved of a federal law that
banned the
racial discrimination in public
accommodations even if they were
privately owned, because that had an
effect in interstate commerce.
Importantly the court found that not only
was this a matter of commerce but also
of an interstate right to travel, which
is considered quite significant by the
Supreme Court.
The mobility of Americans, the ability to
travel within the entire
national territory is so significant that
the court said that, unduly
interfering with it, which racial
segregation and accommodations did, was
something
that the Congress could invalidate by
statute and indeed the Congress did.
The Katzenbach case the Supreme Court
accepted Congress' explanation
that racial discrimination, in fact, does
effect interstate commerce.
That if you are black and not able to stay
at a
hotel in Atlanta it makes it difficult for
you to travel there course.
If you are not able to take on gas at a
particular gas
station, you're unable to eat at a
particular restaurant, because of the
color of
your skin, that limits your mobility
within the United States, and the court
ruled that the Congress could invalidate
acts
that enforce racial segregation in that
manner.
[BLANK_AUDIO]
Recently, however, the current Supreme
Court has
limited the Congress' authority under the
commerce clause.
United States versus Lopez in 1995 based a
decision of the Supreme Court of the
United States that limits Congressional
authority in
exercising its legislative powers under
the Commerce Clause.
Specifically, the court struck down a
federal criminal law that
punished possession of a handgun in or
near any school.
The effects argument that was articulated
by the United States Congress meaning
that criminals use firearms in violent
crimes and that would have an economic
impact on the peoples' right to travel
because they would be discouraged from
traveling to places with high crime rates
was rejected by the Supreme Court.
And the court ruled that this interferes
with
the states' authority to regulate most
criminal activity.
In fact, the states have general police
power to regulate criminal activity.
So the fact that violent crime in
or around schools, could impede people
from traveling
or, it could limit the educational
processes
which means that, our citizens are less
productive.
All of those are articulations of a
national effect that were made by
the congress were rejected by the Supreme
Court in the United States versus Lopez.
The Supreme Court however did indicate
that there are areas that Congress may
regulate under the Commerce Clause,
specifically the
use of the channels of interstate
commerce.
For example, the congress can continue to
invalidate
racial discrimination in public
accommodations for travel, because that
does in fact affect the channels of
interstate
commerce, the ability to use the national
road system.
The instrumentalities of interstate
commerce may
also be regulated by the Congress.
For example, the Congress may set rates
that can be
charged by railroads even if they're just
for intrastate transportation.
There can be national legislation
regarding what
railroads may charge because they're
essential to transport.
Activities with a substantial relation to
interstate commerce may
also be regulated by the Congress under
the Commerce Clause.
Labor practices of employees who have a
substantial effect.
The-, this is important, because the
Congress can
say that if you have more than a
predetermined number of employees, you can
be subjected
to certain regulations like, say, national
health care.
The other area that is also often
an example of commercial activity is
agricultural activity.
The Cumulative-Effect Doctrine, which we
have
already discussed, stated even though
someone
is raising a crop for their personal
consumption in the state of Florida.
The cumulative effect of small farms can
add up to something that
has an effect on the national economy and,
therefore, Congress may regulate that.
However, the Supreme Court has issued some
limits on congressional authority to
regulate commerce.
In New York versus the United States, the
court invalidated a federal law that
attempted to encourage states to develop a
system for the disposal of hazardous,
radioactive waste.
This has been a continuing problem.
There's a lot of radioactive waste that is
produced in all of
the states, and how to dispose of it is a
major challenge.
Congress attempted to develop a system by
stating that if states failed to develop a
plan, that they would acquire ownership of
any
radioactive waste that was generated
within the state.
The Supreme Court said that that was going
too far.
That the legislature of the United States
was
in effect commandeering the legislatures
of the states.
Meaning that the federal government was
forcing the
states to spend their money in something
that
the federal government wanted them to
spend their
money but the federal, the state
government did not.
[BLANK_AUDIO]
Other limits imposed on the Commerce
Clause,
exercise of power by the legislature,
involve guns.
In Printz versus the United States the
court ruled that
the anti-commandeering doctrine also
applied not only to state legislatures.
Allocation of funds, but also to the use
of
state agencies, and specifically found
that the federal legislature could
not require, could not mandate that local
police conduct criminal
background checks on anybody who wanted to
buy a weapon.
However, Congress does have the power of
the purse,
as we discussed very early on in this
series.
And the Supreme Court has ruled that while
Congress cannot mandate.
Regulation in certain areas, it can entice
the state
governments to do certain things by
offering them money.
And so, basically, the Congress can choose
to reward
states for complying with federal
regulation, with federal conditions.
This is so called conditional spending.
The federal government says, to this day,
if you do this which we wish you to do, we
will give you x amount of money.
The Congress, of course, has the power to
tax and spend.
So, that is the exercise of its power to
spend money.
Not the Commerce Clause, so therefore the
Commerce Clause cases do not limit this.
In addition to that, the Congress has the
authority to promote the general welfare.
And that means that it can encourage the
states to do certain things that benefit
its citizens.
And then the 16th Amendment to the
Constitution
of the United States, which enables the
national income
tax also gives the congress the authority
not only
to collect those taxes, but also to spend
them.
So a couple of examples of conditional
spending.
In the United States, unlike many places
in the world, the
drinking age, the minimum age for having
alcoholic beverages, is 21.
And the reason for that is that congress
passed a, included
in a federal highway authorization bill
the statement that if the states
increase their drinking age, which
normally were 18 years, to 21, they
would get additional amounts of funding to
build highways within their states.
And therefore, most states in the United
States, in
fact, have a 21 age, 21 year old drinking
age.
Other exam, another important example is
social welfare.
There are many system of welfare benefits
for poor people.
The food benefits for people who cannot
afford food and other kinds
of benefits, which exist within the states
because the federal government has
told them, if you implement systems like
this, we will give you,
in most cases, billions of dollars in
order to implement those programs.
[BLANK_AUDIO]
Mobility.
This is the National Highway System of the
United States.
We are a big nation of over 300 million
people and of great geographic extension.
And we've spoken about the fact that we
have
50 sovereign states and 6 somewhat
sovereign territorial possessions.
So is that compatible with mobility?
Well in fact, it is.
The fact is that Americans have an
entitlement to travel freely from one
state to another, and in need to establish
residency In any state of their choice.
The right to travel has been recognized by
the Supreme
Court, even though it's actually not
expressly in the Constitution.
And this is rather curious, because the
Articles of Confederation, in
fact, included a protection, an express
protection of the right to travel.
So it is curious that the founding fathers
did
not include it expressly in the
Constitution of 1789.
But the Supreme Court resolved that it is,
in
fact, a fundamental right given to any
American citizen.
And, it found from the, multiple ways as
for it, in the Constitution itself.
And so therefore, it has used this right
to travel to
invalidate, mostly state imposed burdens
on that right, even if indirect.
Cases.
Crandall versus Nevada, a state tax on
persons
traveling by public transportation was
ruled to be unconstitutional
traveling in public transport should not
be subject to the state tax.
In Shapiro versus Thompson, a six-month
residency
requirement for, to obtain welfare
benefits also unconstitutional.
So I said, the right to travel guarantees
your right to temporarily pass through a
state.
But also your right as an American to move
there, to buy a
house, to rent a home, and to put your
children in school there.
And, if you're eligible for it, to receive
welfare benefits.
So the state cannot discriminate against a
previously non-resident
citizen who chooses to move to that state,
the Supreme Court has found.
In addition to the Express Commerce Clause
cases,
you also have the so-called Dormant
Commerce Clause cases.
So to explain that, the Commerce Clause
can be
thought of as an active commerce clause,
meaning that
there has been actual legislation passed
by the United
States Congress on the basis of the
Commerce Clause.
And then, the dormant one by definition
means that Congress has not
acted to enable legislation, or to pass
any legislation in that particular area.
And yet, the United States Supreme Court
and the federal courts more generally,
used the mere presence of the
Commerce Clause to invalidate certain
state statutes.
It's basically anything that would limit A
national common market within the United
States.
And so this national common market that is
being protected
by the Supreme Court, and by the federal
courts through the
application of the dormant commerce clause
Establishes what
many Europeans would find perfectly normal
in the era of the European Union.
That there's free movement of goods, free
movement of people
throughout the territory of the member
states of the European Union.
Well, there's something quite similar here
in the United States.
There's free movement of people, free
movement of
goods within all the States of the Unites
States.
This nation is a common market, the
Supreme Court has ruled, in which state
lines can not be made barriers to the free
flow of both raw materials
and finished goods in response to the
economic laws or, of supply and demand
and so the states are simply not permitted
to limit that national common market.
The court uses the Dormant Commerce Clause
to invalidate protectionist legislation.
It normally, we talk about protectionist
legislation as being a
sovereign power, meaning that it's usually
a nation-state that exercises it.
Well, in the United States, is the states
that
tried to protect intrastate activity from
out of state businesses.
And so the court has used the dormant
commerce clause to
invalidate legislation that discriminates
against, or
unduly burdens out of state businesses.
Interestingly and importantly this in,
includes
not just American businesses from another
state, but international firms that try to
do business within a American state.
And the Supreme Court has increasingly
used the dormant
commerce clause to invalidate
protectionist
state legislation in recent years.
And this brings to a conclusion our series
on the Constitution of the United States.
I have attempted to lay out for you the
very fundamental, very basic concepts of
our Constitution, and we will provide
supplementary
materials on our Coursera course page for
you.
But I will continue to lay out the
basics of the American government in a
future series
on the judicial system and on the American
adversary system, particularly focusing on
the American oral trial.
For now, thank you.
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