More on the Commerce Clause

 One of my favorite podcasts, More Perfect, just came out with a podcast on the Commerce clause that I found particularly interesting given our discussion in class. I'm linking the podcast below - it's a really interesting listen!

The commerce clause itself is shockingly short - just 16 words. For reference - this is the entirety of the commerce clause: The US Congress will have the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

We learned in class about how the Granholm case (https://en.wikipedia.org/wiki/Granholm_v._Heald for more detail) invoked the Commerce Clause in it's argument, which was at least a small victory for wine shipments against the rigid 3 tier system. I thought it would be interesting to share a bit more context on the commerce clause, as it seems that there could be legal standing for further action on behalf of wineries and the wine industry as a whole (I'm not a legal scholar, and heavily biased wine lover, but still..).

This podcast shed more light on the history of how the commerce clause has been used. The first major case that invoked the commerce clause was Gibbons v. Ogden - essentially saying that the commerce clause prevents states (NY in this case) from discriminating against other states' companies' use to favor local companies. In this case, NY was regulating the use of their port such that out of state shipping companies either couldn't use the port or had to pay massive tariffs in order to support a NY based company. This seems like a pretty straightforward application in 1824.

The next case they bring up was in 1942, and expands the use of the commerce clause quite a bit. For background, the US was in the middle of the great depression and the dust bowl, and in order to support the economy, Congress began regulating the wheat market. They guaranteed the price of wheat, and capped farmers at farming 11.1 acres of wheat (so as to not flood the supply with the guaranteed price).

Filburn was a farmer in Ohio who grew all sorts of things, including wheat. He grew his allotted 11.1 acres to sell, then a few more (well, quite a few more) acres to feed the animals on his farm. A government official inspected his farm, and fined him for the additional acres. Stating that these acres were for private use, and not for sale on the market, Filburn sued the federal government.

Now, since we've all taken micro here at the GSB I think we understand why the government wanted to regulate this guy. If every farmer just grew the wheat they needed in addition to what they sold instead of buying it on the market, many big buyers (aka farmers with animals to feed) wouldn't buy wheat and the government wouldn't be able to effectively regulate the market. That being said, this was one of the first times (according to the podcast, I'm not a legal historian myself) that the government regulated private conduct in this way. Some argued that if the government could regulate wheat grown for private consumption, could they not regulate the dress a mother and child sewed together? Or even prosecute for child labor? Stay tuned for how this applies to to the ACA at the end..

The government won, and we're past the Marshall court era. This decision expanded the commerce clause's power a fair deal, but nothing compared to what's to come in the Warren court.

Then in 1964, the commerce clause saw a whole new arena - civil rights. In 1964 many restaurants were still segregated, even after the passage of the Civil Rights Act of 1964. For whatever reason (not the job of this post to go into...), integration of restaurants and other establishments just wasn't happening in many places. Katzenbach v. McClung saw Ollie McClung, the owner of a barbecue joint in Birmingham sued for not serving African-American customers in the dining room (only through the take-away business). How does this connect to the commerce clause? The primary two arguments were as follows: 1) This was not a local business, it was an interstate one and thus subject to regulation under the commerce clause. While Ollie's may think they are local shop, they buy most of their meat from a company that sources from all over the country. Their salt? Ketchup? Same thing. Their product is created from a long chain of interstate commerce. 2) By refusing to serve customers of a certain race, these establishments significantly hindered interstate commerce by restricting flow of certain people from state to state.

This raises two questions for me in regards to wineries and the 3 tier system. First of all, is there a case to be made that by not allowing wineries to distribute in a more direct manner, that the 3 tier system is inhibiting interstate commerce of the inputs of wine that are not local grapes? Specifically, could it be argued that the 3 tier system is forcefully reducing production of wineries and therefore reducing how much they would engage in interstate commerce if they could produce more? (Admittedly a bit of a stretch, but hey - look at Katzenbach v McClung!). Second, if the commerce clause in McClung is essentially saying "you can't restrict service/sales to certain groups, that will impede the free flow of interstate travel and interstate commerce", could that not be said too for out of state winery visitors who want to purchase and ship wine home from that winery? Okay, I'm clearly stretching my legal training, which is entirely via podcast, but the parallels were interesting nonetheless.

For what it's worth, though, it seems the commerce clause is losing some steam with more conservative contemporary court constructions. This use of the commerce clause was again revisited in regards to the ACA - does the commerce clause have the ability to compel a private citizen to participate in commerce (via the individual mandate)? This is ever so slightly nuanced from Filburn.

Here's the episode for those interested! http://www.radiolab.org/story/radiolab-presents-more-perfect-one-nation-under-money/