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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

this area.

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.

In uphold

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

34/ powers.

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.


these cases,
the test of federal power derives from the Court's decision

in National League of cities v. Usery. The Court analyzed National

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).

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