Category Archives: The Commerce Power

Powers ch 7, Short Course ch 7

Purple Haze

Over the course of the past year, two issues have emerged that highlight policy dilemmas generated by the federal structure of the US.  One dilemma will be addressed by the Supreme Court when it hears oral argument in the case of Windsor v. US.  This case deals with the tension between a federal law that refuses to recognize gay marriages, and state laws that recognize those marriages as legal.

The second dilemma involves the contradiction between federal and state drug policies.  Several states—California and Colorado among them—have legalized the use of marijuana.  California allows marijuana to be used for medical purposes since the drug seems to relieve some of the symptoms of certain diseases or various painful side effects of therapy.  The dilemma is that although states may allow the use of marijuana, federal drug policy still makes production, sale, possession and use of the drug a criminal offense.

In 2005, the Supreme Court handed down a decision in the case of Gonzalez v. Raich.[1]  Despite the fact that California law allows the medical use of marijuana, the federal Controlled Substances Act (CSA) makes the production and use of marijuana illegal.  Angel Raich and Diana Monson were two Californians who were using marijuana under physician’s supervision to counteract the effects of a brain tumor and severe back pain, respectively.  Federal agents seized and destroyed six marijuana plants that Monson was growing for her own use.  Both Raich and Monson sued, claiming that the enforcement of the CSA prevented them from having access to a legal medical treatment.  The federal government argued that the CSA was a valid exercise of the federal power to regulate interstate commerce.

In their argument challenging the law, it seemed that Raich and Monson had the upper hand.  Not only was their marijuana produced locally, it was also provided free to those who needed it.  Thus it was argued that the production, distribution and use of the plant were not part of the stream of interstate commerce.  The medical use of marijuana also seemed to be a subject that fell squarely within the bounds of state police powers.  In response, the federal government argued that the commerce power extends to economic activity that substantially impacts interstate commerce, using Wickard v. Filburn as precedent.

Although the lower courts agreed with Raich and Monson, the Supreme Court reversed.  Despite the fact that two cases—Lopez (1995) and Morrison (2005)—had indicated that the Court was sympathetic to restrictions on the breadth of the commerce clause, the Court voted 6-3 that the situation here was much like that in Wickard.  In that case, the Court determined that the Commerce Power could be used to regulate agricultural production that was purely for personal use, on the ground that this production in the aggregate could affect the interstate demand for a product.  As was the case in Wickard, the Court in Raich determined that the national market for marijuana, even if an illegal market, could be regulated under the Commerce Power.  Chief Justice Rehnquist and Justices O’Connor and Thomas were the only justices to agree with Monson and Raich that their use and production of marijuana was not an economic transaction, much less one that impacted interstate commerce.

Raich is prelude to an interesting prosecution taking place now.  The New York Times reports that a California businessman, Matthew Davies, has been indicted for growing and producing marijuana for medical use.[2]  Davies has established a medical marijuana supply business that is perfectly legal in California, complying with all employment and commercial requirements.  Records documenting the medical need for the drug are meticulously kept and the business only supplies marijuana for health reasons, with detailed records to back that claim.  Despite President Obama’s comments that the Justice Department has more important things to do than prosecute individuals for the use of medical marijuana, the US attorney for the area argues that Davies is a major “commercial marijuana trafficker.”  He has offered a plea deal that could put Davies behind bars for a mandatory minimum sentence of five years.  Davies, who appears to be a respectable citizen with no criminal record and is the father of a young family, is fighting the indictment.

Given the outcome of Raich, it would seem that Davies’ business would definitely be subject to federal regulations under the Commerce Power.  Although Justice Thomas’s dissent in Raich argued that simple use of locally produced and donated marijuana was not economic activity; in this case, Davies’ business is clearly production for profit.   But the case squarely presents a tension between state and federal policy, highlighting the problem of federalism, and this question is addressed in Justice O’Connor’s dissenting opinion.  As she noted, an important function of federalism is to provide “spheres of state sovereignty” that “promot[e] innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.’”[3]   If this is so, then what is to be done when the federal government tries to enforce a national social and health policy that contradicts a popular state policy?  It will be interesting to see whether more cases like this one emerge, whether the Court will eventually address the question, and how it will resolve this dilemma.

[1] Excerpted in Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 7th ed., pp. 456-464.

[2] Adam Nagourney, “In California, It’s US vs. State Over Marijuana,” January 13, 2013; accessed 1/14/2013.

[3] Epstein and Walker, p. 462.


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Cat Lovers Beware! You have been “Wickarded”.

The Eleventh Circuit of US Courts of Appeal issued a decision that the Animal Welfare Act, passed under the egis of the Commerce Clause, gives authority to the USDA to regulate Hemingway’s cats (or at least the progeny of Hemingway’s cats).   For those that have not visited Key West and Hemingway’s house there, it is important to the story that the six-toed cats are a fixture—a living and roaming exhibit of the museum.  After all, there are well over fifty kitties roaming the grounds.  Apparently, several years ago a visitor to the museum thought that the cats were not being cared for appropriately and filed a complaint.  This complaint resulted in a district court and then appeals court ruling, both times in favor of the government and the regulation.

The Animal Welfare Act regulates circuses, zoos, and traveling animal shows of all kinds.  The museum may be housed intrastate, but Key West is a travel destination and the museum, much like the motel in Heart of Atlanta v. U.S. 379 US 241 (1964), serves interstate travelers and uses the cats to market to those visitors.  Indeed, without tourists traveling to Key West and get a sense of Margaritaville, the museum would not be a viable enterprise.  Given this substantial connection to interstate commerce, Wickard v. Filburn 317 US 111 (1942)applies.  Harm to the cats is equivalent to the harm to interstate commerce.  Based upon the ruling, the museum must either house all the cats in cages overnight or erect a much higher fence keeping the cats within the borders of the museum for their own safety.   And, if the USDA does not already, they clearly have the ability to regulate the housing and care of all the show animals in the various local, state, regional, and national competitions as well as those 4H animals that head off to the county and state fairs.

The lower courts were clearly following precedent, but would the justices of the Supreme Court be equally deferential?  Yes the majority cited Wickard in Gonzalez v. Raich 545 US 1 (2005) to justify striking California’s medical marijuana law.  That the substantial effect was on the black market rather than the legal market was not a concern for the justices.  Here though, could we see them taking an alternative route?  Distinguishing the Six-toed Cat Case from Heart of Atlanta or Wickard? 

In Heart of Atlanta, the justices made the reasonable argument that if you cannot find a place to stay while traveling you are less likely to travel.  However, are the cats similar?  If the federal government does not come in and regulate the cats, will people stop flocking to the sunny Florida Key?  Or is this situation another example of overreach by the federal bureaucracy as it tries to get its hands (paws) on a local police powers issue?

It is not known whether the museum will appeal to the justices for relief.  I hope so.  And, I hope the justices take it and reverse the lower courts.  Why?  Because I want to be able to talk about the Six-toed cat case right along side the Sick Chicken case.

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What does Reno v. Condon mean for state sovereignty?

Teaching the government powers and constraints portion of my constitutional law course while prepping for the civil liberties section for the winter term tends to foster interesting counterfactuals.  As I created the moot court hypothetical for this term, I had occasion to review Reno v. Condon (528 US 141 2000).  In this case the Court is examining a federalism and sovereign immunity conflict.  Congress passed the Driver’s Privacy Protection Act of 1994 after learning that states were selling private information for revenue.   South Carolina challenged the act claiming that Congress was infringing on state power.  The Supreme Court disagreed and found that if the state is acting as a business not a sovereign, then the federal government can regulate the interstate commerce.

As class moved on this term, we came to the case of Heart of Atlanta Motel v. US (379 US 241 1964), and the typical discussion ensued regarding why the federal government could not ban discrimination under the 14th Amendment instead of the commerce clause.  I provided a quick summary of the state action doctrine and referenced Wilmington Parking Authority v. Burton (365 US 715 1961).

After class, I began wondering about the implications of Reno here.  In Burton, the Court finds state action because the parking garage housing the segregated restaurant was built with public monies AND the restaurant pays rent to the city.  In other words, the parking garage and the restaurant are revenue streams.  Wilmington is a landlord.  Under Reno, Wilmington should not be treated as a sovereign or part of a sovereign—it should be treated as any other private business and immune to equal protection arguments under the 14th Amendment.[1]

This same line of reasoning opens up states to a whole host of federal regulation based upon the reasoning in Reno.  For example, in City of Abilene v. EPA (2003), the Fifth Circuit noted that Reno means that cities themselves fall under the proscriptions of the Clean Water Act.  “Like the DPPA, the proposed numeric end-of-pipe permits would not have required the Cities to regulate their own residents, but instead, by requiring the Cities to meet effluent limitations, would have regulated them in the same manner as other dischargers of pollutants.” (325 F.3d 663)

If the doctrine in Reno shield states and cities from some intrusions, the pay-off may not be as great as the price.  While there may be fewer places for the reach of the 14th amendment, there seems to be more areas where a state or city government is acting as an individual.

[1] Of course, this does not mean that the restaurant could discriminate—the Civil Rights Act covered that base under the commerce clause.

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Filed under Discrimination, Federalism, The Commerce Power

The heat is on? A hypothetical

A recent NPR story on efforts to reduce the incidence of heat stroke deaths of young athletes raises interesting issues about federalism and regulation.

As anyone who lives in the South knows, football practices begin in earnest during the summer.  The hot, humid Southern weather and the conditions of practice and workouts (lots of physical exertion, lack of shade, a “macho” environment where it’s expected that the players will endure demands that push them to the edge of physical limits) have led to the deaths of young players from heatstroke.  According to the NPR story, five high school players died of heat stroke last year; more deaths have occurred in previous years.

The deaths have led to research about conditions that will mitigate the threat of heatstroke (for example, practice in a t-shirt and shorts keeps players significantly cooler than practice in uniforms and padding).  It has also led to the formation and adoption of guidelines by the National Athletic Trainers Association (NATA) to help coaches create practices that enable players to adapt to practicing and playing in the heat.  According to the NPR story, “The guidelines require a certain number of days at the beginning of the practice season without full uniforms. They limit the number of two-a-day practices that teams can have. They also recommend having an athletic trainer on site — something fewer than half of high schools do.”  Craig Lemoult, the reporter for the story, further notes that only “nine states have fully adopted the task force guidelines.”[1]  He ends the piece by noting that because the policies guiding high school athletic training policies are governed by state policies, concerned parents who want football practices conducted according to the NATA recommendations must advocate for their adoption in each state.

Given that few states have adopted the guidelines, a committed set of parents could launch a lobbying effort to Congress to get the passage of legislation that would require any state that received federal education funds to adopt the NATA guidelines.  That congressional legislation could require, rather than recommend, an athletic trainer on site.  One could imagine that cash-strapped state schools who don’t have athletic trainers (according to the NPR story, this is less than half of all high schools) might protest the imposition of another cost to their budgets.  If they decided to challenge this legislation, the following questions would be raised:

1)      How could this legislation be justified under the Constitution?  Is it an exercise of the commerce power?  If so, how?

2)      If passed, would the legislation be an imposition of legitimate federal regulation or a coercion on the states?  What factors would affect the answer to this question?

[1] Craig Lemoult, “Heat Guidelines Help Keep Young Athletes Cool,”, accessed 8/28/2012.

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Filed under Federalism, The Commerce Power, The Power to Tax and Spend

Pre-emption or police powers? Who wins?

The Court of Appeals for the 10th Circuit issued a fairly standard ruling this week, as reported by the Denver Post.[1]  The issue in the case, as stated by Judge Ebel, “is whether Congress’s mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado’s enforcement against the Depot of its regulation prohibiting storage of any hazardous waste.”[2]  Given Congress’s clear and continued attention to the destruction of hazardous chemical weapons, the federal government has occupied the area, even though Congress has also granted some authority to the states to deal with the issue as well.

According to the Denver Post, the state is considering whether to appeal this ruling to the Supreme Court.  Given the unanimous affirmance of the District Court opinion, would Colorado have any hope of a reversal by the justices?  Where does this issue fall on the scale of state’s rights versus federal power.  Clearly, there is a significant and compelling health concern here.  The storage of chemical weapons is not foolproof; neither is their destruction.  As the Oregonian reported in 2011 after the Umatilla Depot finished incinerating the last of its chemical weapons, some dating back to WWI, “[a] palpable sense of relief accompanied the final incineration. For the nearby Columbia River towns of Hermiston, Irrigon, Umatilla, Stanfield and Boardman, with a combined population of 40,000, the destruction lifts a decades-old specter of a potential accident or explosion releasing a chemical cloud.”[3]  Similar concerns affect communities across the Columbia River in Washington State.  There the Hanford site stores nuclear waste and this facility is prone to leaks.  The state of Washington is displeased with the pace and the budget allotted to the cleanup of this site.  According to the 10th Circuit’s ruling, neither Washington nor Oregon could not place any demands on the facilities to speed their processes or take greater care.

Now, in Maine v. Taylor 477 US 131 (1986), the Supreme Court allowed a state to infringe on commerce between the states if there was a significant potential harm to the state’s ecology.  However, in this case Congress had been silent.  Given the continued extensions of deadlines for destruction and cleanup in both Colorado and Washington does the state’s interest in significant environmental damage and health risks rise to a point that might tip the scales?  And is the Roberts Court the court that will readjust those scales?  The legacy of the commerce and federalism decisions from the past two decades indicates that states are provided more deference in many of their fights against federal encroachment, Raich v. Gonzalez 545 US 1 (2005), NFIB v. Sebelius No. 11-393 (2012) and Arizona v. US No. 11-182 (2012) notwithstanding.  It seems that if there were an interest that could lead to an exemption to the pre-emption doctrine, this might be it, particularly if there is some ambiguity within congressional law and a documented lack of federal progress on the health concerns of the state.

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Filed under The Commerce Power, The Separation of Powers System in Action

End run around Morrison?

In 2000, the Supreme Court ruled the Violence Against Women Act of 1994 unconstitutional.  The decision in United States v. Morrison (529 US 598) followed closely upon the heels of US v. Lopez (514 US 549) and curbed Congress by limiting the reach of the Commerce Clause.  The law was intended to support investigation and prosecution of violence against women; it also provided an avenue of civil redress for the victims.  In Morrison, Christy Brzonkala was using the act to gain recompense after the administration of Virginia Tech did not punish the perpetrator despite an admission of continued sexual contact after being told ‘no’ and the grand jury did not indict.   After the Court’s ruling, Brzonkala had no other legal options.


As of April 2011, there may be a way for victims of sexual violence on college campuses (or any public or private institution receiving federal funds) to gain redress.  On April 4, the Office of Civil Rights issued a ‘Dear Colleague’ letter.  The letter provided guidance to schools covered by Title IX.   In this letter, the OCR outlined that sexual violence is a form of sexual harassment.  In 1980, the Equal Employment Opportunity Commission issued guidelines regarding Title VII and established that sexual harassment is sexual discrimination.  This definition of sexual harassment has also been accepted in Title IX.[1]  Under the broader rubric of sexual discrimination, all remedies under Title IX are available against a school if the school showed deliberate indifference.


Additionally, Section 1983 (42 USC § 1983) allows victims of sexual discrimination (or any other federal statutory right) to sue for damages.  So, if the transitive property of geometry also works in law, then if sexual violence is equal to sexual harassment and sexual harassment is equal to sexual discrimination, then sexual violence is also equal to sexual discrimination and therefore all available remedies available for victims of sexual violence, in schools or workplaces covered by Title IX and Title VII of the Civil Rights laws, are in play.  Under this interpretation, Brzonkala would likely prevail against Virginia Tech under the deliberate indifference standard because Morrison admitted contact after being rebuffed and the school did not sanction him, and she would have a case under §1983.


When we discuss the separation of powers, we consider that Congress or the administration has little ability to alter constitutional rulings.  However, in this situation a broadening of a definition seems to accomplish at least part of the congressional will behind the Violence Against Women Act of 1994.

[1] See Gebser v. Lago Vista Independent School District  524 US 274 (1998) and Davis v. Monroe County Board of Education 526 US 629 (1999).

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Filed under Discrimination, The Commerce Power, The Separation of Powers System in Action