Commerce Clause Research 5-5-2015 #12

 [9-7-2025: I am going through my prison journal, but this is not part of that journal. The federal government provided us with a free law library - LexisNexis, to be precise - and there came a time I decided to research the law that got me into prison, the Constitution's Commerce Clause. In law school, they teach us the law as it is, for that is what we must deal with for our clients. I took a slightly different approach, what I call a genealogical approach. Long ago, but after law school, I learned there is often a drift in judicial interpretations. This drift was not part of my education. That it happens is not as much a concern as where the law is at the time one has a case; the main stream of interpretation and any anomalies. My public defender had given me Gonzales v. Raich to read while in was in pretrial detention in 2010; four years later, I decided to find the sources of that case. My conclusion to all this research (and there will be a lot of this to post) is that the United Supreme Court has expanded and extended the Commerce Clause into a national police power that is not curbed by any constitutional provision, only by the political will of Congress, and can bring the power of the federal government into the most minute aspect of American lives. I thought that terrifying in 2014; today it poses a horrendous threat.

I will note that this present post may well be the rawest version of the notes. However, time and the mailing around and the shifts in their storage will make these posts messy. That and their apparent irrelevance to the lives of most people will probably drive most of you away from reading them. I ask for your patience, for they are relevant to your lives, since your lives are tangled in the jurisdiction of the Commerce Clause. 

While typing the previous section, I ran across the date of 6/1/12, so these notes may be even older, but I see no other dates and so will leave the title unchanged. The following paragraphs begin with the page number of 49. As I said, the originals are in a messy condition.

Caminetti v. United States, 242 U.S. 470 (1917) is the most important Commerce Clause case I never heard mentioned in law school, and is the key to modern Commerce Clause jurisprudence.

I will finish this part as I always preface my prison journal entries: What you are reading is what you get for your tax dollars.

sch.]

North American Co. v. SEC, 327 U. S. 686, 327 U. S. 705 (1946) provided "channels of interstate commerce" for United States v. Orito, 413 U.S. 139 (1973). 413 U. S. at 144. Footnote 6 touches on Caminetti:

... In Hoke v. United States, 227 U. S. 308 and Caminetti v. United States, 242 U. S. 470, the so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one State to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality.

Orito allows for moral regulation by Congress, reminiscent of Caminetti:

  Given (a) that obscene material is not protected under the First Amendment, Miller v. California, supra; Roth v. United States, supra, (b) that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce, see Paris Adult Theatre I, ante at 413 U. S. 57-64, and (c) that no constitutionally protected privacy is involved, United States v. Thirty-seven Photographs, supra, at 402 U. S. 376 (opinion of WHITE, J.), we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter. That the transporter has an abstract proprietary power to shield the obscene material from all others and to guard the material with the same privacy as in the home is not controlling. Congress may regulate on the basis of the natural tendency of material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter's professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure could cause. See Paris Adult Theatre I v. Slaton, ante at 413 U. S. 57-63. See also United States v. Alpers, 338 U. S. 680, 338 U. S. 681-685 (1950); Brooks v. United States, 267 U. S. 432, 267 U. S. 436-437 (1925); Weber v. Freed, 239 U. S. 325, 239 U. S. 329-330 (1915).

"The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. McCray v. United States, 195 U. S. 27; Sonzinsky v. United States, 300 U. S. 506, 300 U. S. 513 and cases cited."

Page 413 U. S. 143 - 44 

This was the same statute as United States v. Alpers, 338 U.S. 680 (1950), Caminetti does not appear in Alpers [See Commerce Clause Research 5-5-2015 #2. sch 9/7/2025].

Citicorp Indus. Credit v. Brock, 483 U.S. 27 (1987) presents a FLSA case but with a slightly different twist: the party seeking to skip the FLSA was a secured creditor. "Channels of interstate commerce" appear as follows:

...Like the FLSA, these regulatory measures bar goods not produced in conformity with specified standards from the channels of commerce.... 483 U.S. at 39

***

President Roosevelt's message to Congress, which served as the inspiration for passage of the Act, makes a similar point:

"Goods produced under conditions which do not meet rudimentary standards of decency should be regarded as contraband, and ought not to be allowed to pollute the channels of interstate trade." Footnote 8.

***

Section 2(a), codified at 29 U.S.C. § 202(a), provides:

"The Congress finds that the existence, in industries engaged in commerce . . . of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general wellbeing of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States.... (Footnote 8)

No case extends our understanding of the "channels of interstate commerce" except for United States v. Lopez. There, Justice Rehnquist seems closer to Justice McKenna's Caminetti dissent. Moskal v. United States, 498 U.S. 103 (1990) and McElroy v. United States, 455 U.S. 642 (1982) do nothing more than expand on United States v. Sheridan, 329 U. S. 379, 329 U. S. 384 (1946). Alpers echoes in Orito.

We have no Chief Justice White or a Justice Murphy among the writers of the opinions between Heart of Atlanta Motel and Lopez. Justice Brennan used in "channels of interstate commerce" in the majority opinion for Daniel v. Paul, 395 U.S. 298 (1969), and in his dissent to Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976). Justice Marshall has two opinions with the phrase: Citicorp Indus. Credit v. Brock, and Moskal v. United States, 498 U.S. 103 (1990). The phrase appears in Justice Stevens' dissent in McElroy v. United States, 455 U.S. 642 (1982) (and in which Justice O'Connor wrote the majority opinion), and in his majority opinion, Meese v. Keene, 481 U.S. 465 (1987). Chief Justice Burger wrote the opinion in Orito. Justice Harlan rounds out the set with his concurring opinion in United States v. Guest, 383 U.S. 745 (1966).

I think there is a trend here of the Justices quoting, or deriving, the metaphor from legislation. None, except Justice Harlan, readily used the phrase divorced from a statute's text, or a case quoting the statute's text.

Between United States v. Morrison, 529 U.S. 598, (2000) and Carr v. United States, 560 U.S. 438 (2010) exists nothing of great value. Lopez continues to loom large. Central to that case was Congress not framing the legislation in economic terms; the crime imposed was non-economic. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) cites Lopez, recites the three broad categories susceptible to Congressional power, and the holds the case falls under the category of "substantially affecting interstate commerce".  Pierce County v. Guillen, 537 U.S. 129 (2003) did have "channels" as its subject, and has already been mentioned. "Congress may `regulate the use of the channels of interstate commerce....'" is used by Justice Scalia's separate opinion in Alaska v. United States, 125 S. Ct. 2137 (2005). 

Carr v. United States interpreted the federal Sex Offender Registration and Notification Act in terms similar to those used by Justice Day in Caminetti.

...Had Congress intended to subject any unregistered state sex offender who has ever traveled in interstate commerce to federal prosecution under §2250, it easily could have adopted language to that effect. That it declined to do so indicates that Congress instead chose to handle federal and state sex offenders differently. There is nothing “anomal[ous]” about such a choice. To the contrary, it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision. It is similarly reasonable for Congress to have given the States primary responsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after SORNA’s enactment, they use the channels of interstate commerce in evading a State’s reach.

 Then comes Gonzales v. Raich in 2010. This case cites to Perez v. United States, 402 U. S. 146, 150 (1971), instead of Lopez or Morrison, for the proposition that Congress can regulate the channels of interstate commerce, but the opening like Solid Waste Agency - then decides the matter falls within the substantial effect on interstate commerce category. What has interest arises in Justice Scalia's separate opinion, which decides the case:

  Since Perez v. United States, 402 U. S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Id., at 150; see United States v. Morrison, 529 U. S. 598, 608–609 (2000); United States v. Lopez, 514 U. S. 549, 558–559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276–277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189–190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete.

   It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U. S. 294, 301–302 (1964); United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942); Shreveport Rate Cases, 234 U. S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U. S. 1, 39–40 (1895) (Harlan, J., dissenting).[Footnote 1] And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

 sch

[And there my notes end. sch 9/7/2025.]