Constitutional Law I Federal Power II (Gibbons v. Ogden) Feb. 10, 2006.

Constitutional Law I

Federal Power II(Gibbons v. Ogden)

Feb. 10, 2006

Spring, 2006 Con Law I - Manheim 2

Federalism & States’ Rights

The interplay between federal and state power Both governments regulate private

parties Because of federal supremacy,

federal law preempts state law broad federal power means narrower state

power narrow federal power means broader state

power

Spring, 2006 Con Law I - Manheim 3

Federalism – Forum for Mediating

Court Text of constitution suggest that allocation of

power is a judicial question Art. I, § 1: "All legislative Powers herein granted …" Amd X: "The powers not delegated to the US by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Congress Structure of federal gov’t suggests that division

of power is determined by states' in Congress Composition of congress; electoral college Amd XVII – Direct election of Senators

Spring, 2006 Con Law I - Manheim 4

The Commerce PowerDisputes over federalism often appear in the context of the commerce power Art. I, § 8, cl. 3: "The Congress shall

have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Must define

"commerce"

Must define

"among"

Must define

"regulate"

Spring, 2006 Con Law I - Manheim 5

Thomas Gibbons Aaron Ogden

v.

Spring, 2006 Con Law I - Manheim 6

Robert Fulton

Steamboat Clermont

Spring, 2006 Con Law I - Manheim 7

Gibbons v. Ogden (1824)New York law grants exclusive franchise to conduct ferry business between NY and NJFederal law grants franchise to Gibbons to engage in "coasting trade"

Spring, 2006 Con Law I - Manheim 8

Gibbons v. Ogden (1824)New York law grants exclusive franchise to conduct ferry business between NY and NJFederal law grants franchise to Gibbons to engage in "coasting trade"

• Is the NY law constitutional?• Does it violate any limitation in constitution?• Is it preempted by the federal law?

•might be, but only if federal law is valid

Spring, 2006 Con Law I - Manheim 9

Gibbons v. Ogden (1824)New York law grants exclusive franchise to conduct ferry business between NY and NJFederal law grants franchise to Gibbons to engage in "coasting trade"

• Is the NY law constitutional?• Does it violate any limitation in constitution?• Is it preempted by the federal law?

•might be, but only if federal law is valid• Is the federal law constitutional?

• Does it exceed congress' commerce power?

Spring, 2006 Con Law I - Manheim 10

Meaning of "Commerce"Interpretive Methodologies Originalism

“The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government”“Convention must have used the word in that sense”Historical validation

“power [over navigation] has been exercised from the commencement of the government, has been exercised with the consent of all”

TextualismSee Art. I § 9, ¶ 6 (limiting power over navigation)

Spring, 2006 Con Law I - Manheim 11

Does Commerce include Navigation?

Traffic Buying and selling of commoditiesIntercourse All species of commercial transactions

Spring, 2006 Con Law I - Manheim 12

Extent of Congress’ powerMarshall rejects “strict construction”Expansive interpretation of "commerce" these words comprehend every species

of commercial intercourse No sort of trade can be carried on ... to

which this power does not extendExpansive interpretation of "among" "Intermingled with"

Spring, 2006 Con Law I - Manheim 13

Does congress’ power extend to commerce withinwithin the States?Commerce among the States must, of neces-sity, be commerce with the States

if a foreign voyage may commence or ter-minate at a port within a State, then the power of Congress may be exercised within a State.

Spring, 2006 Con Law I - Manheim 14

If congress’ power extends to inter-state commerce, can this be exercised without regulating some aspect of commerce within the states themselves?

Spring, 2006 Con Law I - Manheim 15

What portion of the ferry trip between NY and NJ does congress have power to regulate? Can it regulate the intra-state portion? Wholly intra-state?

Spring, 2006 Con Law I - Manheim 16

"The genius and character of the whole gov't seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state."

Spring, 2006 Con Law I - Manheim 17

Gibbons' affect on NY population

Population Growth - NY & Phil

0

100,000

200,000

300,000

400,000

500,000

600,000

1800 1810 1820 1830 1840 1850

Year

Popu

latio

n

New York

Philadelphia

Spring, 2006 Con Law I - Manheim 18

Johnson ConcurrenceExpansive interpretation of “commerce” History/framers’ intent/nature of a constitution All “vital agents of commercial prosperity”Why write separately Federal power over commerce is exclusive

So as to leave unregulated as congress intends If exclusive, then NY has no power to regulate

Even had congress never licensed Gibbons Marshall’s view on this:

“There is great force in this argument, and the Court is not satisfied that is has been refuted.”

Spring, 2006 Con Law I - Manheim 19

The License Cases (1847)Marshall replaced by Taney (1836) Far less “federalist” in his viewsOn exclusivity of federal commerce power “mere grant of power to the general government

cannot be construed to be an absolute prohibition of any power over the same subject by the States.”

If not exclusive, state laws can still be preempted If exclusive, then sharper distinction needs to be

drawn between matters of interstate commerce and matters of “internal police.”

Spring, 2006 Con Law I - Manheim 20

Cooley v. Bd. of Wardens (1851)

Issue: Do states have power to regulate local

navigation?Rule (version 1): Navigation is part of commerce Congress’ power over commerce is concurrent States have retained power to regulate navigation

Unless congress denies (preempts) that powerRule (version 2): Navigation is part of commerce Congress’ power over commerce is exclusive States have no retained power to regulate navig’n

Spring, 2006 Con Law I - Manheim 21

Cooley v. Bd. of Wardens (1851)

Rule (version 2): States have no retained power to regulate navig’n But, Congress can adopt state law as federal law.

Was that done here? Can Congress delegate power back to the States?

Not if the constitution divested states of such power Compare Art. I § 10

Perhaps if divested by implicationRule (version 3): The grant of power over commerce to congress

Is sometimes exclusive, and Sometimes concurrent Depends on the

nature of the subject being

regulated

Spring, 2006 Con Law I - Manheim 22

Cooley v. Bd. of Wardens (1851)

Matters capable only of exclusive regulation (that “admit of only one uniform system”): Channels of interstate commerce

Air routes, sea lanes Instrumentalities of interstate commerce

Airplanes, shipsMatters capable of concurrent regulation (“best provided by many different systems”): Wholly intrastate activities

Trade; health, safety & morals (police matters)Which is port pilotage? Contrast captains