What Supreme Court case expanded the federal authority over the states?

Lainie Rutkow is an Assistant Professor and Jon Vernick is an Associate Professor at the Johns Hopkins Bloomberg School of Public Health in Baltimore, Maryland.

Find articles by Lainie Rutkow

Jon S. Vernick

Lainie Rutkow is an Assistant Professor and Jon Vernick is an Associate Professor at the Johns Hopkins Bloomberg School of Public Health in Baltimore, Maryland.

Find articles by Jon S. Vernick

Author information Copyright and License information Disclaimer

Lainie Rutkow is an Assistant Professor and Jon Vernick is an Associate Professor at the Johns Hopkins Bloomberg School of Public Health in Baltimore, Maryland.

Address correspondence to: Lainie Rutkow, JD, PhD, MPH, Johns Hopkins Bloomberg School of Public Health, 624 N. Broadway, Baltimore, MD 21205, Fax: 410-614-9055, ude.hpshj@wokturh

Copyright © 2011 Association of Schools of Public Health

The U.S. Constitution's Commerce Clause1 represents one of Congress's most important sources of legislative powers. Although the Commerce Clause's text neither explicitly mentions nor even alludes to public health, its interpretation by the U.S. Supreme Court has played a key role in either promoting or hindering efforts to achieve landmark legislation affecting the public's health. Most recently, the Commerce Clause has figured prominently in lawsuits challenging the validity of the Patient Protection and Affordable Care Act (PPACA).2,3 The constitutional litigation concerning health-care reform has brought increased attention to the complex nature of the Commerce Clause and its relationship to the public's health.4

The Supreme Court's interpretation of the Commerce Clause is complex and evolving, and the Court's decisions have important implications for public health policy and practice. While Congress can use the Commerce Clause to justify some public health-related legislation, courts may invalidate such legislation as exceeding Congress's power under the Commerce Clause. This article provides historical context and describes recent developments in Supreme Court jurisprudence in the context of public health intervention. We then discuss how these decisions will affect ongoing judicial treatment of other public health endeavors.

THE SUPREME COURT'S INTERPRETATION OF THE COMMERCE POWER

Congress can only act using powers enumerated in the Constitution.5 In addition, the 10th Amendment reserves to states those powers not specifically granted to Congress nor denied to the states. The Commerce Clause, however, vests potentially broad authority in Congress to pursue legislative reforms addressing a wide range of matters.

The Commerce Clause states that “Congress shall have the Power… to regulate Commerce… among the several States… .”1 Congress has relied upon this provision to enact legislation covering public health priorities as diverse as drug labeling;6 environmental protection;7 laws regulating child labor, the minimum wage, and conditions of employment;8 and laws aimed at remedying gender-motivated violence.9

The Supreme Court's Commerce Clause jurisprudence can be divided into several distinct phases. From the earliest days of the nation to the late 19th century, the Court generally moved toward a more expansive interpretation of the Commerce Clause, as the role of the federal government in addressing the needs of a maturing nation became clearer.10 But in the decades preceding the New Deal, the Supreme Court, operating in a more laissez-faire social and economic environment, interpreted the scope of the Commerce Clause more narrowly, striking down numerous laws intended to protect the public's health.11

For example, in A.L.A. Schechter Poultry Corporation v. U.S., the Supreme Court invalidated federal legislation establishing certain labor conditions and regulating the sale of unhealthy chickens. Although the law was aimed at preventing the movement of dangerous foods in interstate commerce, the Court overturned the law, holding that it interfered with labor conditions related to purely intrastate business activities.12

By 1937, however, the Court had reversed course in the face of intense political fallout flowing from its New Deal decisions.12 In short order, the Court turned away challenges to other New Deal laws such as the National Labor Relations Act,13 instituting a broader reading of the Commerce Clause.14

Between 1937 and 1995, the Supreme Court developed an extremely expansive view of the Commerce Clause. In fact, no federal laws were found to violate Congress's commerce power during this period.10 Perhaps the most far-reaching decision came in Wickard v. Filburn, in which the Court upheld Congress's power under the Agricultural Adjustment Act to impose a quota on wheat grown by a single farmer primarily for personal consumption. The Court found that while personal growth and consumption of wheat might not, by itself, directly affect commerce, the cumulative impact of individual conduct, aggregated among many farmers, could affect the price and availability of wheat and, thus, interstate commerce.15

Narrowing the scope of Congress's Commerce Clause power

The first notable reversal from this expansive period came with the Court's 1995 decision in United States v. Lopez,16 in which, for the first time since the 1930s, the Court invalidated a federal law as exceeding Congress's Commerce Clause power. The law in question was the federal Gun-Free School Zones Act, which made it a crime “to possess a firearm at a place that the individual knows, or has a reasonable cause to believe, is a school zone.”17 Alfonso Lopez was a 12th-grade student convicted of carrying a handgun onto school grounds. Writing for a sharply divided (5-4) Supreme Court, Chief Justice Rehnquist overturned the Act. Rehnquist reasoned that the Court's prior Commerce Clause cases showed that Congress had the power to regulate activity falling into three distinct areas: (1) use of the “channels of interstate commerce;” (2) the “instrumentalities of interstate commerce, or persons or things in interstate commerce” (e.g., products actually moving across state lines); and (3) “those activities that substantially affect interstate commerce.”18 Only this last category was implicated in United States v. Lopez.

In determining that possession of a gun in a school zone was not an activity that could “substantially affect interstate commerce,” the majority found that the Act had “nothing to do with ‘commerce’ or any sort of economic enterprise.…”19 In enacting the law, Congress included no express findings or evidence that guns in school zones affected interstate commerce, nor did violation of the Act require that the weapon in question actually move across state lines. The majority was not persuaded by the federal government's arguments on appeal linking firearm possession in school to interstate commerce via the educational, economic, and social impact of school violence. The majority opinion concluded that if the Court accepted the government's arguments, it would be “hard pressed to posit any activity by an individual that Congress is without power to regulate.”20

United States v. Lopez can be seen as the Court's effort to define the outer bounds of the Commerce Clause and to pull back from prior cases upholding the broadest possible reading of congressional power. United States v. Lopez also signaled the Court's willingness to play a less deferential role in Commerce Clause cases. Previously, the Court had given Congress broad leeway to decide when intervention was appropriate; United States v. Lopez underscored the Justices' desire to more actively review congressional decisions, although the Court acknowledged this might create greater “legal uncertainty” regarding the constitutionality of federal laws.21

Limiting Commerce Clause powers despite extensive congressional findings

Extensive congressional findings regarding a law's effect on interstate commerce are not enough: following its own review, the Court may still invalidate a federal law. For example, passage of the Violence Against Women Act (VAWA) of 199422 was accompanied by a “mountain of data” assembled by Congress to demonstrate the impact of gender-motivated violence on interstate commerce.23 VAWA created a right for individual victims of gender-motivated violence to file a federal civil action against their perpetrators.24 Lower courts dismissed a lawsuit brought under VAWA, in which Christy Brzonkala alleged that she had been raped by fellow college students Antonio Morrison and James Crawford, on the grounds that the law exceeded Congress's Commerce Clause powers.25,26 On appeal, the Supreme Court agreed, finding that as in United States v. Lopez, the central question was whether VAWA concerned “economic activity” that “substantially affects interstate commerce.”27

In its analysis, the majority opinion acknowledged congressional findings associating gender-motivated violence with economic consequences for individual victims and families. But the Court rejected Congress's findings and conclusions. In another 5-4 split, the Court held that gender-motivated violence is fundamentally an intrastate, non-economic activity that lies beyond congressional reach. Crucial to the decision was the Court's concern that the civil remedy created by VAWA constituted punishment for the type of purely “intrastate violence” that traditionally fell within the states' criminal law purview.28

Upholding the commerce power to regulate intrastate activities

Following Lopez and Morrison, the Supreme Court returned to a somewhat more expansive reading of the Commerce Clause in Gonzales v. Raich. Gonzales v. Raich involved federal enforcement of the U.S. Controlled Substances Act against Angel Raich and Diane Monson, California residents who were growing and using marijuana for personal medicinal purposes under California's Compassionate Use Act.29 The case reached the Supreme Court on the question of whether the commerce power allowed Congress to regulate activities associated with purely intrastate production and consumption of marijuana.

The Court revisited Wickard v. Filburn, which, like Gonzales v. Raich, raised the question of whether local use of a product could be found to have a cumulative impact on national markets. The Court noted that under the Controlled Substances Act, Congress sought to regulate all aspects of the interstate market for controlled substances, including local activities. Citing congressional findings regarding the diversion of locally grown marijuana into interstate markets,30 the Court concluded that the law was constitutional.

The “dormant Commerce Clause:” an additional limitation on state and local activity

Even when Congress has not actively employed its commerce power, state and local public health efforts may be affected by a legal doctrine called the “dormant Commerce Clause.” Not only does the Commerce Clause empower Congress to act, but it can also bar state and local actions that could interfere with interstate commerce even when Congress has not acted.10 When a state law is challenged on dormant Commerce Clause grounds, the crucial question becomes whether the law discriminates against people or products outside of the state. If so, courts will strike down the state law unless it is necessary to achieve an important purpose.31

Dormant Commerce Clause challenges arise in many public health contexts. For example, in Dean Milk Co. v. City of Madison, Wisconsin,32 the Supreme Court invalidated a Madison, Wisconsin, ordinance that forbade the sale of pasteurized milk unless the pasteurization process occurred within five miles of the city. The Court found that Madison's provision was “not essential for the protection of local health interests” and that it burdened interstate commerce. Similarly, in Chemical Waste Management v. Hunt, the Supreme Court overturned an Alabama law imposing an additional fee on hazardous waste generated outside of the state but disposed of within Alabama. The Court noted that Alabama's concerns about the impact of hazardous waste on its citizens' health should not vary with the waste's origin.33

IMPLICATIONS FOR PUBLIC HEALTH POLICY AND PRACTICE

Lopez, Morrison, and Raich are all crucial in framing the judicial approach to the constitutionality of the PPACA when—and if—one or more of the legal challenges ultimately reaches the Supreme Court. (It is conceivable, of course, that Congress could revise the PPACA in ways that address the core constitutional issues raised, thereby rendering the case moot.) Constitutional scholars have noted that inconsistent lower-court opinions in challenges to the PPACA's legality can be attributed, in large part, to the complex, unpredictable nature of Commerce Clause jurisprudence.34 While the legal challenges have highlighted Congress's reliance on the Commerce Clause to enact the PPACA, they also have focused attention on the Court's varying interpretations of Congress's commerce power.

The Supreme Court's current standard for determining whether Congress has exceeded its commerce power can be subjective, making it difficult to predict the legality of federal laws affecting the public's health. In Lopez, the Court explicitly acknowledged that determining whether a particular intrastate activity (e.g., gun possession) is economic in nature can, at times, lead to “legal uncertainty” over the proper application of Congress's commerce power.16 This uncertainty has resulted in both narrow and expansive interpretations of the commerce power. In Morrison, the Court found that gender-motivated violence, even when its effects are viewed cumulatively, does not constitute economic activity of the type that Congress is empowered to reach. Yet in Raich, the Court concluded that Congress has the power to reach individual conduct that is purely intrastate in nature and lawful under state public health laws, at least when the activity involves an area such as the federal regulation of illicit substances. The Justices' 5-4 split in Lopez and Morrison underscores the unpredictable and contentious nature of these decisions.

Morrison also reveals that the Court may substitute its own judgment for that of Congress in deciding whether an activity that is the subject of a public health intervention affects commerce. This assertion registered a strong dissent in which Justice Souter argued that Congress, not the Supreme Court, has “institutional capacity for gathering evidence and taking testimony.…” The Court's job, according to Justice Souter, is to “review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.”23 When the Court concludes that congressional findings are unpersuasive, as it did in Morrison, it becomes more difficult to predict the fate of federal legislation. Predictability is one of the hallmarks of Supreme Court legitimacy. By creating a more subjective Commerce Clause test, the Court undermines its ability to be seen as a neutral arbiter of congressional power.

This unpredictability has been emphasized recently by conflicting lower-court opinions regarding Congress's power to require individuals to purchase health insurance. The divergence reflects conflicting views about the courts' powers to characterize conduct that is the subject of federal regulation and its impact on interstate commerce. Several lower courts dismissed lawsuits challenging Congress's power to require that individuals purchase health-care coverage,35,36 while two others concluded that the failure to be insured does not constitute an activity that Congress lawfully can reach.37,38 These cases all rest on the same handful of Supreme Court opinions, applying them with profoundly different results.

Of course, a broad reading of Congress's powers can also interfere with state efforts to advance public health, such as California's attempt to make marijuana available for medicinal purposes. Indeed, in her Raich dissent, Justice O'Connor wrote that “[t]his case exemplifies the role of States as laboratories.… Today the Court… extinguishes [California's] experiment.”39 State innovation may similarly be frustrated by the Court's interpretation of the dormant Commerce Clause, if state action is found to discriminate against interstate commerce.

The current state of Commerce Clause litigation suggests the importance of other constitutional sources of congressional powers, such as its power to tax and spend. These powers can incentivize states to pass laws that advance public health, such as requiring the use of motorcycle helmets or lowering speed limits.40 Congress can also raise revenue and spend it to promote the public's health, as it does with Medicare and Medicaid, or to discourage unhealthy practices, such as using its taxing powers to curb tobacco use.41 Because these powers are less subject to challenges than the commerce power, they may offer a more reliable alternative for enacting public health protections.

REFERENCES

1. U.S. Constitution, Art. 1, §8, cl. 3.

2. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)

3. Rosenbaum S. A. “broader regulatory scheme”—the constitutionality of health care reform. N Engl J Med. 2010;363:1881–3. [PubMed] [Google Scholar]

4. Mariner WK, Annas GJ, Glantz LH. Can Congress make you buy broccoli? And why that's a hard question. N Engl J Med. 2011;364:201–3. [PubMed] [Google Scholar]

5. Marbury v. Madison, 5 U.S. 137 (1803)

6. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §331(k) (1938)

7. Clean Water Act, 33 U.S.C. §1251 et seq. (1972)

8. Fair Labor Standards Act, 29 U.S.C. §§201–219 (1938)

9. United States v. Morrison, 529 U.S. 598 (2000)

10. Chemerinsky E. Constitutional law: principles and policies. 2nd ed. New York: Aspen Publishers, Inc.; 2002. [Google Scholar]

11. Sullivan KM, Gunther G. Constitutional law. 14th ed. New York: Foundation Press; 2001. [Google Scholar]

12. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

13. N.L.R.B. v. Jones – Laughlin Steel Corp., 301 U.S. 1 (1937)

14. Adkins v. Children's Hospital, 261 U.S. 525 (1923), overturned by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)

15. Wickard v. Filburn, 317 U.S. 111 (1942)

16. United States v. Lopez, 514 U.S. 549 (1995)

17. Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789.

18. United States v. Lopez, 514 U.S. 549, 558–559 (1995)

19. United States v. Lopez, 514 U.S. 549, 561.

20. United States v. Lopez, 514 U.S. 549, 564.

21. United States v. Lopez, 514 U.S. 549, 566.

22. The Violence Against Women Act of 1994, 42 U.S.C. §13981 et seq. (1994)

23. United States v. Morrison, 529 U.S. 598 at 628 (2000) (Souter J, dissenting)

24. Strebeigh F. Equal: women reshape American law. New York: W.W. Norton & Co.; 2009. [Google Scholar]

25. Brzonkala v. Virginia Polytechnic and State University, 935 F.Supp. 779 (W.D. Va. 1996)

26. Brzonkala v. Virginia Polytechnic and State University, 169 F.3d 820 (4th Cir. 1999)

27. United States v. Morrison, 529 U.S. 598, 609-610.

28. United States v. Morrison, 529 U.S. 598, 618.

29. California Health – Safety Code §11362.5 et seq. (1996)

30. Gonzales v. Raich, 545 U.S. 1 (2005)

31. Eule JN. Laying the dormant Commerce Clause to rest. Yale Law J. 1982;91:425–85. [Google Scholar]

32. Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951)

33. Chemical Waste Management v. Hunt, 504 U.S. 334 (1992)

34. Rosenbaum S, Gruber J. Buying health care, the individual mandate, and the Constitution. N Engl J Med. 2010;363:401–3. [PubMed] [Google Scholar]

35. Liberty University, Inc. v. Geithner, 2010 WL 4860299 (W.D. Va. 2010)

36. Thomas More Law Center v. Obama, 720 F.Supp. 2d 882 (E.D. Mich. 2010)

37. Virginia ex rel. Cuccinelli v. Sebelius, 702 F.Supp. 2d 598 (E.D. Va. 2010)

38. Florida ex rel. McCollum v. U.S. Dep't of Health – Human Services, 716 F.Supp. 2d 1120 (N.D. Fla. 2010)

What Supreme Court cases expanded federal power?

How did Gibbons v. Ogden expand?

Which Supreme Court case below increased the power of the federal government over the states?

Which Supreme Court case had the greatest impact on federalism?