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Power to Regulate Commerce--The Commerce Clause
The Constitution specifically authorizes Congress to regulate com-
The commerce power has been held a source of plenary power
for Congress to legislate in a broad sphere. Congress thus has author
ity to legislate with respect to any activity that "affects commerce,"
such as regulation of the movement or transit of goods, and is further
empowered to determine in the first instance what legislation is reason
25/ ably necessary to achieve its regulatory objectives. In the keystone
26/ case of Gilbons v. Ogden, the Court stated that the Commerce power 16
in itself complete and can be exercised to the utmost.
Later cases determined
that Congress can reach even a local activity that is purely intrastate in char
acter "where the activity, combined with like conduct by others similarly
27/ situated, affects commerce among the states or with foreign nations.
Through its implied power to enact legislation that is necessary and proper
to the regulation of interstate commerce, Congress can regulate even wholly
local activity as long as Congress could rationally conclude that such legi
lation affects commerce. Hodel v. Virginia Surface Mining & Reclamation
28/ Association provided certain standards. "The judicial test 16 at an end
24/ U.S. Const. art. 1, § 3, cl. 3, known as the "Commerce Clause."
25/ United States v. Darby, 312 U.S. 100 (1941); Perez v. United States, 402 U.S. 146 (1971).
26/ 9 Wheat. 1 (1824).
27/ See, Fry v. United States, 421 V.S. 542, 547 (1975); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 255 (1964); and Wickard v. Filburn, 317 l'.$. lll, 127-12€ (1942).
28 / 452 U.S. 264 (1981).
once the Court determines that Congress acted rationally in adopting a par
29/ ticular regulatory scheme." Thus, the "rational basis“ test has develop
ed as the constitutional measure of commerce based legislation.
The bill specifically includes as proposed findings of fact that the
consumption of alcoholic beverages 16 a major cause of vehicle accidents,
that a large number of these accidents are caused by drivers under the
age of 21 and that the proposed legislation 18 necessary for the public safety and welfare. Assuming that the legislative record adequately supports these statutory and related legislative findings, Congress may well
have the power under the Commerce Clause to enact the proposed legis
As the Court has stated:
"The Court aust defer to a congression
al finding that regulated activity affects Interstate commerce, if there
30/ is any rational basis for such a finding.'
Congress has legislated in a variety of areas for the protection of
the public. The Court has upheld federal legislation forbidding the
sale of misbranded drugs that have moved in Interstate commerce, even when
the drugs are ultimately sold by a retailer who received them from an in
31/ state wholesaler. The Court has also upheld federal legislation forbidding
discrimination against Blacks by a small restaurant where the restaurant
purchased 46 percent of its food from a local supplier who had procured it
Under the circumstances of the bill, the
from outside the state.
291 Ibid., at 276.
30/ Hodel, 452 U.S. at 276. See also, Heart of Atlanta Model Inc., 379 U.S. at 258; and Katzenbach v. McClung, 379 U.S. at 303-304.
31/ United States v. Sullivan, 332 U.S. 689 (1948).
32/ Katzenbach v. McClung, 379 U.S. 294 (1964).
national traffic in alcoholic beverages and the substantial impact on inter
state commerce caused by those who drink and drive appear to be within the
purview of the commerce power .
Thus it appears that a compelling argument
can be made for the bill's constitutionality under the commerce clause
since there appears to be a rational basis for the proposed legislative
Tenth Amendment considerations
The Tenth Amendment to the Constitution reserves certain powers to
the individual state governments.
Arguments can be made that the bill
may encroach upon some of these reserved powers of the states.
the Tenth's Amendment's reservation to the states and the people of
powers not delegated to the federal government may not be a bar to the
Under contemporary Tenth Amendment analysis, the constitution
ality of the bill would be assessed somewhat differently depending upon
whether the sale of alcohol in a given state is predominantly a private
function or affected through state owned establishments.
In either case,
however, it appears that Congress probably has the power to legislate in
In those states where the sale of alcohol, while regulated by the
state, is left to private persons, the Tenth Amendment does not appear
to pose a restriction on the bill.
As the bill is based on Congress'
commerce power, the area can be preempted by federal law.
ing the federal regulation of surface coal mining, an area of legis
lation which had previously been regulated by the states, the Court
emphasized that "(nJothing... suggests that the Tenth Amendment shields
the States from pre-emptive federal regulation of private activities affecting
331 interstate commerce...." The Court stated that long ago it had rejected
the suggestion that Congress invades areas reserved to the states by the
33/ Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264 (1981).
Tenth Amendment simply because it exercises its authority under the Com
merce Clause in a manner that displaces the state's exercise of its police
In the states where the state itself sells alcoholic beverages
Tenth Amendment analysis is different since there the bill would involve
the federal government in directly regulating the states themselves.
League as establishing four tests, all of which had to be met before the
federal legislation would be declared invalid.
These tests required:
1) the federal statute must regulate the states as states; 2) the federal
regulation must address matters that are without doubt attributable to state
sovereignty; 3) the federal regulation must directly impair the state's
ability to structure integral operations in areas of traditional state functions;
and 4) even if the three preceding requirements are all met, a balancing test
might still demonstrate that the federal interest is so great as to justify
36/ state submission.
Applying these criteria to the bill, the first standard does not appear
to be met.
It is uncertain whether or not the Court would find that the
sale of alcoholic beverages is an uncontested attribute of state sovereignty
as required by the second test articulated above.
Furthermore, it may be
34/ Ibid., at 290-291.
351 426 U.S. 833 (1976).
36/ Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 u.s. 264, 287-288 (1981); and United Transportation Union v. Long Island R. Co., 455 U.S. 678, 684 (1982).