The Commerce Clause And You: A TN Primer

On Friday, Phil Bredesen allowed the "Tennessee Firearms Freedom Act" to pass without signature, which declares that federal laws do not apply to firearms, ammunition, or accessories made in Tennessee and which remain in Tennessee. Bredesen passed the legislation even though he believes it to be an unconstitutional attempt by the state to regulate a federal power.

Kleinheider asks:

What is unconstitutional about this? If a gun is made here and kept here what the heck business of the federal government is it? If Tennessee wants to make its own laws on firearms why is that bad and how is it unconstitutional?

He then asks whether Bredesen should have vetoed it if he believes it to be unconstitutional. Well, duh, but of course that wouldn't be politically expedient.

But if you'll indulge a law student who finds this branch of law particularly fascinating, I'll take a stab at explaining why this legislation would almost certainly be found unconstitutional.

First, let's look at the relevant section of the Constitution--Article I, Section 8, Clause 3; also known as the Commerce Clause:

The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

The Framers saw the lack of federal control over interstate commerce as a particular problem with the original Articles of Confederation; the nation couldn't develop economically if interstate commerce was subject to differing and discriminatory regulations by each state. But the way in which this enumerated power has been interpreted has evolved greatly throughout over the last 200 years.

The first case dealing with the power to regulate commerce among the several states was Gibbons v. Ogden, 22 U.S. 1 (1824). The state of New York had granted Ogden a monopoly to run a ferry service between New York City and New Jersey, but tried to bar Gibbons, who had been granted a ferry charter from Congress, from operating a competing service. The Supreme Court ruled in favor of Gibbons, noting that "commerce" is not just traffic between states, but refers to all forms of commercial intercourse between states.

For the next century or so (and I'm greatly summarizing here), the Court allowed for a more expansive interpretation of the Commerce Clause while still maintaining certain restrictions. For example, the Court upheld a federal law allowing for the confiscation of shipments of eggs containing prohibited ingredients, even though the shipments were no longer "in interstate commerce" by arriving at their destination, because doing so was an appropriate means of preventing their sale in interstate commerce in the first place (See Hipolite Egg Co. v. United States, 220 U.S. 45 (1911)). However, the Court struck down a federal law banning the sale of goods produced through child labor from interstate commerce, as the regulation of production was a local matter, and the production happened before the goods entered interstate commerce. The desire on the part of Congress to prevent an unfair competitive advantage to states allowing child labor was not enough to regulate it (See Hammer v. Dagenhart, 247 U.S. 251 (1918)).

This brings us to one of the most interesting chapters (in my opinion) in the history of the Court. Throughout the 1930s, the Court repeatedly struck down FDR's New Deal legislation dealing with worker welfare (See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936)). In response, FDR threatened to expand the Court to 15 justices in order to "pack" it with justices who would support his legislation. While there is some dispute as to how much effect FDR's threat really had, at some point afterwards, two of the Court's more centrist judges began siding with the three "liberals" on several decisions--a shift known as "the switch in time that saved nine."

I do hope I'm not boring you by now, but these next two cases are extremely important to understanding the standards by which the Tennessee Firearms Freedom Act would be considered unconstitutional. In National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937), the Court upheld a federal law regulating labor standards for steel production. The Court held that while certain activities may be intrastate in character, Congress could still regulate it if the activities have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce. A few years later, in United States v. Darby Lumber Co., 312 U.S. 100 (1941), the Court expanded on that standard of "substantial relation," stating that the Commerce power extends to classes of intrastate activities which have a substantial effect on interstate commerce, and which so affect interstate commerce as to make their regulation an appropriate means to a legitimate end. In this particular case, the Court explicitly overturned Hammer (the child labor case), stating that interstate commerce could not be made the subject of unfair competition between the states.

For the next 50 years or so, this standard stood more or less unchallenged, and the Court pretty much allowed Congress to do what they wanted under the Commerce Clause. The Kennedy Administration was particularly adept at using the Commerce Clause, using it to successfully argue in favor of legislation desegregating hotels and restaurants, on the grounds that such segregation put artificial restrictions on interstate travel, and thus on interstate commerce (See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964)).

Fast-forward to the 1990s, when the Court finally cracked back down on Congress. In a pair of cases, United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), the court struck down laws regulating non-economic activities (respectively, guns in school zones and allowing victims of domestic violence to sue their attackers in federal court), even though the government argued that those activities had a remote effect on interstate commerce. The Court placed a renewed emphasis on the "substantial effects" test, and held that the activity regulated must be economic (again, summarizing greatly).

And now for the grand finale, the direct precedent on which the Tennessee Firearms Freedom Act would be found unconstitutional. In Gonzales v. Raich, 545 U.S. 1 (2005), the Court upheld a Congressional ban on medical marijuana, and the subsequent prosecutions of several Californians for possessing it, even though the state of California had legalized it. In this case, the marijuana in question was produced, sold, and consumed all in the state of California; it could never have been shown to have entered interstate commerce. The Court found that it didn't matter, because there was no way to guarantee that something as in demand as marijuana would NEVER enter interstate commerce:

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future.....The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity

So in other words, it doesn't matter if it's only a little bit of marijuana that's not currently in interstate commerce, because if everyone were allowed to do it, it would inevitably lead to the marijuana being drawn into interstate commerce. And therefore, even allowing that little bit would have a substantial effect on interstate commerce.

Interestingly, this was a 6-3 decision. Kennedy sided with the more liberal members of the Court, and Scalia wrote a separate concurrence. He wanted to differentiate this decision from Lopez and Morrison, since this involved the regulation of a distinctly economic activity:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”

(Just as a side note, this is why it's simplistic to say that certain judges are "liberal" or "conservative" in general. Scalia is certainly conservative, but he has never been hostile to a strong federal government. Also, if you have a moment, read O'Connor's dissent in this case--not sure I agree, but she makes a compelling argument).

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I realize that was really long-winded, but that's why the Tennessee Firearms Freedom Act would almost be certainly found unconstitutional. It doesn't matter, as it didn't matter in Raich, if the production and sale of guns or medical marijuana only happens locally, because there's no guarantee that those articles of commerce will remain within the local market. In fact, it's more likely than not that those articles would go into interstate commerce (because honestly, other than "sending a message," what would be the point of this bill other than to give Tennessee gunmakers a comparative advantage?). What are we going to do, stop every car with a Kentucky license plate to make sure they're not taking guns back with them? What good does it say that federal regulations will apply once the guns have been taken across state lines if they've already been produced in a way in which the federal regulations didn't apply?

This bill is a direct challenge to the Commerce Clause, but it presents the exact same issue as Raich. And it will be found unconstitutional on the same grounds.

But if not, Republican-controlled General Assembly, do you think you could legalize medical marijuana while you're at it? Or do you only support "states rights" when it's convenient to do so?