Commerce Clause Reflection in the Age of Covid-19

There has been much discussion by those on both sides of the aisle with regards to the power of the federal government over the states as it relates to reopening the economy in some of the more gravely stricken states such as New York, New Jersey and California. The president has articulated that the executive branch has the power to enforce this process. Most commentary has focused on challenging the president’s claim on this issue and stating he does not have this authority. One can suggest, however that this issue encourages further debate when considering some major cases that the Supreme Court has ruled on with regards to the Commerce Clause. Here, we highlight a couple of these cases that can encourage further discussion and debate on this issue with regards to the relationship between the federal government and the states in the area of commerce. The president has a duty to enforce duly passed acts of Congress that meet Constitutional standards.

          First, a 1942 case, Wickard v. Filburn concerned a farmer in Ohio that had grown more wheat then was permitted under the Agricultural Adjustment Act of 1938 and thus did not need to purchase from the outside market. He suffered a penalty under the Act and had to pay a fine. He argued that his extra wheat was not in violation of the Act as it was local and for his own use and consumption. The Supreme Court unanimously rejected this view and stated that because he therefore did not participate in the outside market this could culminate in a substantial economic effect on interstate commerce if other wheat farmers had followed suit. This issue therefore fell within the scope of the Commerce Clause and the government had the right to regulate it. Congress had maintained its goal to stabilize consumption prices in the market through the Act, thus it was a valid exercise of authority.

            This decision is often criticized because of the infringement and seemingly hostile actions taken by the government to penalize simply because of the conscious choice to not participate extra in the outside market based on the local circumstances. It also is commonly held as a stretch of the Commerce Clause when the issue comes down to a more indirect relationship and projected outcome of substantial economic effects on commerce. Some may argue that it is not the place of judges to make this determination, but rather left to local governments and economists to consider the substantial effects economic assessment.

            As it relates to the present issues we face as a nation with regards to federalism questions in the midst of a virus outbreak, this creates complications. In the modern landscape, one could argue that there has been greater interdependence on fellow states for products. Take for example, Florida’s orange juice. If a state order was issued that the factories and groves could no longer be in production of the product because of supposed safety concerns it would be detrimental to the flow of commerce between states. Many states and grocery store chains throughout the nation rely on this orange juice to cater to their populace. The next question then posed would require a balancing of factors including just how high was the safety risk posed in the production mechanisms of the product compared to the detrimental impact on the economy and interstate commerce. Orange juice may not be deemed as essential as other products such as vegetables, milk, eggs, spring water and the like but it still creates an interesting quandary. If Congress considers the effects and passes a law that defines national economic standards and safety levels that need to be met in this test like the controls in the 1938 Act, it would be validly exerting its authority on the issue under Wickard.

            In the next phase, the president, in the executive branch would be tasked with enforcing the regulations passed by Congress. One could then argue that his enforcement of a duly passed law against the conditions posed with the state decision on Florida’s orange juice production would seemingly displace the authority of the governor on the issue. If a suit was brought against the federal government with the actions of the president and Congress, the Supreme Court could consider the Wickard standard and find there was a detrimental impact on interstate commerce because of the state moratorium on producing the orange juice during the outbreak. Congress had a valid right to exert its authority under the Commerce Clause with executive enforcement. It should be noted, however, that this would unlikely come to pass in the present situation because of the divided Congress and a seemingly collaborative, albeit imperfect relationship between the White House and state governors. This does not mean, however, that a discussion and substantive debate on the issue should not take place based on the historical precedent that has been set in place. To state that it is an impossibility for the federal government to displace the state authority on the issue would be off-base.

            Another case that build offs and assesses the Wickard reasoning is United States v. Lopez. This case measured the authority of Congress under the Commerce Clause in regulating the carrying of handguns. The statute in question focused on the 1990 Gun-Free School Zone Act and the Court considered the power of Congress to legislate on the carrying of the handguns as defined under this act. The government had argued that this power is encompassed under the Commerce Clause because among other arguments the general economic conditions could be impacted because violent crime impacts insurance rates and deters travel due to alleged unsafe conditions. It then made a bold leap in arguing that the presence of handgun firearms in a school zone would have a detrimental impact on learning and would harm the national economy because education is an essential part of it.

            The Supreme Court disagreed in a 5-4 decision, finding that Congress’ broad authority under the Commerce Clause did not extend to this handgun regulation, an aggregate effect of the factors outlined. The Court did, however, clearly identify three areas that could be regulated (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activitiesand (3) activities that substantially affect or substantially relate to interstate commerce.

            As to the third area, the court assessed factors to discern whether the legislation is an acceptable method to regulate activities that substantially impact interstate commerce. First, must consider whether the activity is economic or non-economic in nature. Second, whether the product moved in interstate commerce. Third, whether there were Congressional findings of a valid economic link between the object and the national interest. Fourth, connected the link was between regulated activity and interstate commerce.

            As applied to our Florida’s orange juice example, a law passed from Congress could plausibly be found Constitutional under this standard unlike the gun issue in Lopez. We begin by finding that the Florida orange juice is in fact a good that would be part of interstate commerce and sent to many states. Producing the orange juice substantially relates to interstate commerce as it is an important national product in demand sold in stores throughout the nation. It is very healthy with nutrients in building up immune systems during virus season. Congress would not be outside its purview in regulating the necessity of the product in challenging a state law or order discontinuing its production.

            When focusing on the substantial relationship area, the factors outlined in Lopez could in fact apply. First, producing the orange juice and selling it to grocery store chains is in fact economic in nature. Second, the product was transported in interstate commerce to various stores throughout the nation to be available for purchase to customers. Third, Congress would likely be able to produce an economic finding and study on the relevance of orange juice financially and in terms of its impact on the nation’s health. Finally, Congress can articulate with the valid law passed the necessity to produce the orange juice and define the degree of economic impact if this staple product was no longer available in stores. All of these factors do not need to be met, but there is a logical basis and argument for them to support the substantial relationship area discussed in Lopez.

            Overall, there is a plausible Commerce Clause argument to be made for Congress to pass laws that impact state decisions made during a virus outbreak that can impact interstate commerce especially in regards to staple goods of the nation. The president would then have the power to enforce the Congressional mandate even if it meant displacing an overbearing state law on the issue. While orange juice production is not necessarily the same as restaurant openings it is just one example that can begin the discussion and logical debate and discourse on defining the boundaries of federal government and state power when considering economic concerns during a virus outbreak.