Monday, September 25, 2023

Gibbons v. Ogden: Broad or Narrow?

Although this decision is often cited as an early one recognizing great power in Congress, notice on p.140 what the Court says the Commerce power does not include: "Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State..." These are not within Congress's power because "they act upon the subject before it becomes an article of ...commerce among the States." Id. Hold this thought at the forefront of your minds as we continue our journey through the Commerce Clause.

Here is the passage in context from casebook page 139-140:

"That inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws, is to improve  the  quality  of  articles  produced  by  the  labour  of  a  country;  to  fit  them  for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They  form  a  portion  of  that  immense  mass  of  legislation,  which  embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of  every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, & c., are component parts of this mass. No   direct   general   power   over   these   objects   is granted   to   Congress;  and consequently, they remain subject to State legislation. . . ."

Under this analysis, what about national laws regulating manufacturing?  Minimum wage laws? Labor laws? OSHA safety laws? Anti-discrimination laws? Do these operate on manufacturing of goods "before [they] become an article of...commerce among the States?" Why not allow each state to decide which protections workers require? 

Is this perhaps what Madison had in mind when he wrote Federalist 45 ("The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.")

No comments: