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INTERSTATE/INTRASTATE COMMERCE



A. Supreme Court cases:

License Tax Cases, 72 U.S. (5 Wall.) 462 (1866): Several states criminally punished transactions in liquors and lotteries, probably either with or without license. Congress then enacted certain internal revenue acts which licensed liquor sales and lotteries. Defendants, conducting illegal state businesses in these fields, did not obtain federal licenses and were indicted; they defended saying Congress can't legalize by license an illegal state activity. Court held that the licenses did not permit conduct of business, but were merely taxes:



"But very different considerations apply to the internal commerce or domestic trade of the states. Over this commerce and trade Congress has no power of regulation nor any direct control. This power belongs exclusively to the states. No interference by Congress with the business of citizens transacted within a state is warranted by the Constitution, except such as is strictly incidental to the exercise of powers clearly granted to the legislature. The power to authorize a business within a state is plainly repugnant to the exclusive power of the state over the same subject. ... Congress cannot authorize a trade or business within a state in order to tax it," 72 U.S., at 470-71.



"But it is not necessary to regard these laws as giving such authority. So far as they relate to trade within state limits, they give none and can give none," 72 U.S. at 471.



"There would be great force in it if the licenses were regarded as giving authority, for then there would be a direct conflict between national and state legislation on a subject which the Constitution places under the exclusive control of the states," 72 U.S., at 472.



Paul v. Virgina, 75 U.S. 168 (1869): insurance is not interstate commerce.



United States v. DeWitt, 76 U.S. (9 Wall.) 41 (1870): Federal revenue act made it illegal to sell illuminating oil of certain flamability and defendant indicted for violating this law in Detroit. Court held defendant could not be prosecuted:



"As a police regulation, relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as, for example, in the District of Columbia. Within state limits, it can have no constitutional operation," 76 U.S., at 45.



United States v. Steffens (The Trade-Mark Cases), 100 U.S. 82 (1879): Revised statutes provided procedure to protect, by registration, trademarks; later act appended criminal penalties. Individuals were indicted for violating trade-mark law, and they argued that criminal penalties were unconstitutional. Court, in dismissing indictments, held that Congress had no such express powers over trademarks, and act was unconstitutional. It also noted that this law, not statutorily connected to interstate commerce, could not be valid on this grounds:



"If it is not so limited, it is in excess of the power of Congress. If its main purpose be to establish a regulation applicable to all trade; to commerce at all points, especially if it is apparent that it is designed to govern the commerce wholly between citizens of the same State, it is obviously the exercise of a power not confided to Congress," 100 U.S., at 96-97.



Coe v. Errol, 116 U.S. 517, 527, 6 S.Ct. 475 (1886): logs floated to mill subjected to tax, which was claimed unconst because in IC; rejected:



"[G]oods do not cease to be part of the general mass of property in the state, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation, to another state, or have been started upon such transportation in a continuous route or journey."



Illinois Central Railroad Company v. McKendree, 203 U.S. 514, 27 S.Ct. 153 (1906):



"We think the defendant was right in the contention that, if the act of February 2, 1903, was constitutional, and rightfully conferred the power upon the Secretary of Agriculture to make orders and regulations concerning interstate commerce, there was no power conferred upon the Secretary to make regulations concerning intrastate commerce, over which Congress has no control," 203 U.S., at 527.



"The terms of order 107 apply to all cattle transported from the south of this line to parts of the United States north thereof. It would, therefore, include cattle transported within the state of Tennessee from the south of the line as well as those from outside that state; there is no exception in the order, and in terms it includes all cattle transported from the south of the line, whether within or without the state of Tennessee .... But the order in terms applies alike to interstate and intrastate commerce," 203 U.S., at 528.



Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U.S. 403, 27 S.Ct. 360 (1907): shipment of corn entirely within Texas was not IC.



Howard v. Illinois Central Railroad Company, 207 U.S. 463, 28 S.Ct. 141 (1908):



"The act, then, being addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employees, without qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of the injury, of necessity includes subjects wholly outside of the power of Congress to regulate commerce," 207 U.S., at 498.



"As the act thus includes many subjects wholly beyond the power to regulate commerce, and depends for its sanction upon that authority, it results that the act is repugnant to the Constitution," 207 U.S., at 499.



Adair v. United States, 208 U.S. 161, 28 S.Ct. 277 (1908): fed law re discharge of employees for union activities was invalid under commerce clause.



Chicago, Milwaukee & St.P. Ry. Co. v. Iowa, 233 U.S. 334, 34 S.Ct. 592 (1914): intrastate transport.



Chicago, B. & Q. R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517 (1916): loading coal bins not IC.



McCluskey v. Marysville & Northern Ry. Co., 243 U.S. 36, 37 S.Ct. 374 (1917): timber cut and floated to Puget Sound and sold to mills was not interstate commerce.



Southern Pac. Co. v. Arizona, 249 U.S. 472, 477, 39 S.Ct. 313 (1919): carnival show traveling entirely in single state wasn't engaged in interstate commerce:



"The mere intention of the shipper to ultimately continue his tour beyond the state of Arizona did not convert the contemplated intrastate movement into one that was interstate."



Arkadelphia Milling Co. v. St. Louis Southern Ry. Co., 249 U.S. 134, 151-152, 39 S.Ct. 237 (1919): shipment of rough material from forest to mill with no intent to sell beyond mill was not interstate commerce.

Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453 (1922): Congress enacted legislation to tax certain transactions involving futures contracts and to regulate boards of trade, but the act contained nothing in it basing the act on Congressional interstate commerce powers. Members of the Board of Trade of Chicago challenged the constitutionality of this act, arguing that Congress had no innate authority of its own to regulate boards of trade and that the only power of Congress to enact such legislation would be its interstate commerce powers with which this act was totally unconnected. The Supreme Court agreed and held the act unconstitutional.



Industrial Ass'n of San Francisco v. United States, 268 U.S. 64, 45 S.Ct. 403 (1925): Builders association in San Francisco were plagued by union difficulties and devised the "American plan", which the government contended violated federal anti-trust law. But, Court held there was no violation, "for building is as essentially local as mining, manufacturing or growing crops," 268 U.S., at 82.



Atlantic Coast Line R.Co. v. Standard Oil Co. of Kentucky, 275 U.S. 257, 48 S.Ct. 107 (1927): oil imported to Tampa, Jax; from there, internal distribution; held intrastate commerce.



Levering v. Garrigues Co., 289 U.S., 103, 53 S.Ct. 549 (1933): Company engaged in erection of steel for buildings in NYC sued union under anti-trust laws for restraining interstate commerce. Court held that such commerce was not involved in case and dismissed suit.



A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837 (1935): NIRA permitted "codes" to be promulgated by industry groups, which "codes" had effect of law. Schecter officials indicted for violating "code" for acts occurring inside NYC. Court held NIRA unconstitutional on delegation of powers grounds and found the acts in question not a part of interstate commerce. Congress has no power over local wages and hours of work.



"The mere fact that there may be a constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use," Id., at 543.



"The power of Congress extends, not only to regulation of transactions which are part of interstate commerce, but to the protection of that commerce from injury. It matters not that the injury may be due to the conduct of those engaged in intrastate operations. Thus, Congress may protect the safety of those employed in interstate transportation 'no matter what may be the source of the dangers which threaten it'... [T]he dominant authority of Congress necessarily embraces the right to control their intrastate operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to secure the freedom of that traffic from interference or unjust discrimination and to promote the efficiency of the interstate service," Id., at 544.



"If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. Indeed, on such a theory, even the development of the state's commercial facilities would be subject to federal control," Id., at 546.



Detroit International Bridge Co. v. Corp. Tax Appeal of Bd. of Michigan, 294 U.S. 83, 55 S.Ct. 332 (1935): international bridge was not engaged in IC.



Penn. R. Co. v. Public Utilities Comm. of Ohio, 298 U.S. 170, 56 S.Ct. 686 (1936): hauling coal in this case was not IC.



Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855 (1936): Bituminous Coal Conservation act imposed tax with a drawback provision conditioned upon compliance with a code regarding prices, labor and other regulations. Court held recitals in act were not the law, that tax was really a penalty, act violated reserved powers of state, act was not regulation of interstate commerce, and act violated delegation of powers principles.



"One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another state, he engages in interstate commerce. In respect to the former, he is subject only to regulation by the state; in respect to the latter, to regulation only by the federal government," Id., at 303.



United States v. Yellow Cab, 332 U.S. 218, 67 S.Ct. 1560 (1947): suit to restrain monopoly. That part of cab business directed to typical cab fares "is too unrelated to interstate commerce to constitute a part thereof... their relationship to interstate transit is only casual and incidental." See also Evanston Cab Co. v. City of Chicago, 325 F.2d 907 (7th Cir. 1963): cabs at airport not involved in IC.



United States v. Oregon State Medical Society, 343 U.S. 326, 338, 72 S.Ct. 690 (1952): doctors acted wholly intrastate, thus not subject to Sherman Act.



United States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190 (1953), seizure of devices without any proof of interstate transport held invalid.



United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 1629-30 (1995), the Supreme Court took the opportunity to precisely define the breadth of the commerce clause and held as follows:



"Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. [cites omitted] First, Congress may regulate the use of the channels of interstate commerce. [cites omitted] Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. [cites omitted] Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. [cites omitted]"



Of course, the defense recognizes the abundance of cases where federal criminal laws have been upheld against commerce clause challenges, many of which concern guns and drugs; cases of this nature are cited in abundance in the annotations to Art. 1, 8, cl. 3, and typical examples of commerce clause construction are found in Hodel v. Virginia Surface Mining Recl. Ass'n., 452 U.S. 264, 276, 101 S.Ct. 2352, 2360 (1981); American Life League v. Reno, 47 F.3d 642, 647 (4th Cir. 1995)("A federal statute is valid under the Commerce Clause if Congress (1) rationally concluded that the regulated activity affects interstate commerce and (2) chose a regulatory means reasonably adapted to a permissible end"); United States v. Genao, 79 F.3d 1333 (2nd Cir. 1996). See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357 (1971): loan sharking statute where findings expressly made.



B. Other courts:



Chicago, R.I. & P. Ry. Co. v. Industrial Comm., 288 Ill. 126, 123 N.E. 278 (1919): RR boiler washer in yard was not in IC.



Western Union Telegraph Co. v. Glover, 17 Ala.App. 374, 86 So. 154 (1920): telegraph sent from point in state to another point in state, even tho thru Atlanta, was intrastate. See also Bateman v. Western Union Telegraph Co. , 174 N.C. 97, 93 S.E. 467 (19)



Loading coal bins not IC: Symonski v. Central R. Co. Of New Jersey, 131 A. 628 (N.J. 1926); Wallace v. New York, N.H. & H. R. Co., 90 Conn. 404 (1923); Arizona Eastern R. Co. v. Head, 26 Ariz. 137, 222 P. 1041 (1924); Killes v. Great Northern Ry., 93 Wash. 416, 161 P. 69 (1916)



Boyer v. Penn. R. Co., 159 A. 909 (Md.App. 1932): RR employee injured on way to work not in IC



City of Atlanta v. Oglethorpe University, 178 Ga. 379, 173 S.E. 110 (1934): radio broadcasting is not IC



Southern Pac. Co. v. Van Hoosear, 72 F.2d 903 (9th Cir. 1934): goods shipped from abroad and left at dock; since sales were from there, no IC



Darger v. Hill, 76 F.2d 198 (9th Cir. 1935): can't license intrastate milk dealers (but compare United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523 (1942)).



Payne v. Woodson, 47 Ariz. 113, 53 P.2d 1084 (1936): repairing shoes is local and not IC.



I.C.C. v. Columbus & Greenville Ry. Co., 153 F.2d 194 (5th Cir. 1946): cotton stored for 6 mos. wasn't IC (ICC limited to IC by statute).



United States v. Moore, 185 F.2d 92, 94 (5th Cir. 1950) (FLSA).



Lawson v. Woodmere, 217 F.2d 148 (4th Cir. 1954): cemetery business was not IC.



Crown Zellerbach Co. v. State, 45 Wash.2d 749, 278 P.2d 305 (1954): manufacturing is intrastate, not IC.



Goldberg v. Faber Industries, Inc., 291 F.2d 232, 235 (7th Cir. 1961): meat scraps drivers hauling to rendering plant only in state not in IC



Dower v. United Air Lines, Inc., 329 F.2d 684 (9th Cir. 1964): intrastate air transport not IC.



Penn. RR Co. v. United States, 242 F.Supp. 890 (E.D.Pa. 1965): purely intrastate not within juris of ICC.



Kline v. Wirtz, 373 F.2d 281 (5th Cir. 1967): meat sent to processor, who cleaned and sold meat; held local truckers not engaged in IC.



Houchin v. Thompson, 438 F.2d 927, 928-29 (6th Cir. 1970): at issue was whether certain workers in a commercial office building were covered by the provisions of the Fair Labor Standards Act. The court found that these workers were not engaged in activities affecting interstate commerce, so they were not covered by the act. Regarding the "de minimis" rule, the Court stated:



"Where some inconsequential incident of interstate commerce happens to result from the general conduct of a fundamentally intrastate business, the rule of de minimis is applicable and the Act does not apply."



National Labor Relations Board v. Clark, 468 F.2d 459, 466 (5th Cir. 1972): here an attempt was being made to subject a nursing home in Alabama to federal labor laws. But, the only nexus of the home to interstate commerce was a $1,700 purchase of supplies from a company whose main office was in Atlanta, Georgia; but, it was not shown how these supplies were shipped to the nursing home. Regarding the "de minimis" rule, the Court held:



"In passing the National Labor Relations Act, Congress intended to provide the Board with the fullest jurisdictional power constitutionally permissible under the Commerce Clause .... If intrastate activity has more than a de minimis effect on interstate commerce, it affects commerce within the meaning of the Act."



The Court concluded here that there was no evidence showing that the home's activities affected interstate commerce.



Southern Pacific Trans. Co. v. ICC, 565 F.2d 615 (9th Cir. 1977): shipping produce case; intent of shipper determines whether it is IC.



United States v. Walker, 575 F.2d 209 (9th Cir. 1978): noted jury instruction that transportation solely within Hawaii was not IC.



Frito-Lay, Inc. v. Wisconsin Labor & Ind. Rev. Comm., 95 Wis.2d 395, 290 N.W.2d 551, 556 (Wis.App. 1980): trucking inside state not IC.



Austin Road Company v. O.S.H.A., 683 F.2d 905 (5th Cir. 1982): OSHA case (Congress intended with OSHA to exercise its fulls IC powers); Texas contractor fined for violation. Since no proof of IC or affect upon IC, fined vacated.



Gramercy 222 Residents Corp. v. Gramercy Realty Assoc., 591 F.Supp. 1408 (S.D.N.Y. 1984): RICO case over building defects. No affect on IC, case dismissed.



Nat. Retail Trans. v. Penn. P.U.C., 530 A. 2d 987 (Pa. Cmwlth. 1987); no IC for goods made in state.



United States v. Hooker, 841 F.2d 1225, 1227-32 (4th Cir. 1988): failure to allege IC in RICO indictment voided conviction.



Allstate Leasing Corp. v. Scroggins, 541 So.2d 17 (Ala.Civ.App. 1989): qualification statute case; VA corp leased equipment; held subject to statute.



Murray v. Briggs, 569 So.2d 476 (Fla.App. 1990): local delivery truck involved in accident not in IC.



United States v. ORS, Inc., 997 F.2d 628 (9th Cir. 1993): indictment dismissed because interstate commerce not sufficiently plead.



United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993): an indictment that fails to allege a commerce nexus, where such a nexus is a necessary element of the offense, is defective.



United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995): burning down house not affecting IC (not Hobbs Act): substantial affect on IC.



United States v. Denalli, 73 F.3d 328 (11th Cir. 1996): arson statute case; held conduct, burning down neighbor's house, as not sufficient affect on IC.



Brzonkala v. Virginia Polytechnic & State University, 935 F.Supp. 779 (W.D.Va. 1996): federal Violence Against Women Act was unconst.



C. Hobbs Act cases:

Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272 (1960): Hobbs Act, 18 USC 1951, purpose was "to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence."



United States v. Critchley, 353 F.2d 358 (3rd Cir. 1965): an union official was indicted for a Hobbs Act violation, the facts being based upon the defendant making a complaint against a roofing company for the sole purpose of soliciting a bribe. His conviction was reversed on the grounds that this act was not one which affected interstate commerce, and there was no other evidence offered to show an interference or obstruction of interstate commerce.



United States v. Merolla, 523 F.2d 51 (2nd Cir. 1975): a conviction under the Hobbs Act was reversed upon a showing that the underlying facts of the case demonstrated no "effect" upon interstate commerce. The defendant in this case had contracted with the victim to build a car showroom for an automobile dealership, but when work on the showroom was jeopardized, the defendant beat the victim and extorted money and property from him. Nonetheless, under the facts of this case, the Court held that there was not a sufficient jurisdictional nexus in the facts to support a Hobbs Act conviction.



United States v. Elders, 569 F.2d 1020, 1023-24 (7th Cir. 1978): Elders' conviction under the Hobbs Act was reversed also on the basis that the facts involved in the case showed no "de minimis" connection to interstate commerce. In essence, Elders, an employee of a municipality, sought and obtained a series of "kickbacks" or bribes from a tree trimming company engaged in work for the city. In its opinion, the court summarized the requirements for a federal interstate commerce prosecution as follows:



"In each case, however, a nexus has been required between the extortionate conduct and interstate commerce in order to establish federal jurisdiction. That nexus may be de minimis ... but it must nonetheless exist."



United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979): In attempted bombing case, convictions were reversed on the grounds that the events of which the government complained had no minimal connection to interstate commerce



United States v. Mennuti, 639 F.2d 107 (2nd Cir. 1981): A federal indictment was dismissed on the grounds that the defendants' conduct in the case had no "de minimis" effect on interstate commerce; the facts involved the bombing of a residential home.



United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982): Playboy electrician paid bribe of $3000 to get license, extorters indicted for Hobbs Act violation. Under depletion of assets theory, victim was electrician, who wasn't in IC.



United States v. Brantley, 777 F.2d 159 (4th Cir. 1985): movement of undercover gambling operation and equipment can't establish IC.



United States v. Voss, 787 F.2d 393 (8th Cir. 1986): an attempted arson of a home, even though potentially held for commercial activity, involved no "de minimis" connection with interstate commerce.



United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989): bribes paid to city officials; Hobbs Act requires de minimis connection, not involved here.



United States v. Buffey, 899 F.2d 1402 (4th Cir. 1990): effort to extort money from corp. president; held no affect upon IC.



United States v. Blair, 762 F.Supp. 1384 (N.D.Cal. 1991): Hobbs dismissal. Local ADA prosecuted for taking bribe in case involving friend.



United States v. Waters, 850 F.Supp.1550, 1562 (N.D.Ala. 1994): Judge Acker rakes Bill Barnett over the coals in this Hobbs act case which was dismissed via rule 29. Equipment used in construction which was manufactured in another state but had been in Alabama for years was not sufficient affect upon IC:



"This court can see how breathing or spending a buck could be said to effect commerce, but such actions would be too remote to constitute interference with commerce, that is unless everything that moves or breathes is automatically deemed to affect commerce, making any proof redundant."



United States v. Collins, 40 F.3d 95, 100-01 (5th Cir. 1994): robbery case not IC: "the congressional power extends only to conduct which 'exerts a substantial economic effect on interstate commerce,' it is manifest that Congress may not regulate conduct that, standing alone, does not directly affect interstate commerce or have a direct effect on a business engaged in interstate commerce."



United States v. Box, 50 F.3d 345, 352 (5th Cir. 1995): Hobbs Act charges, several of which dealt with travelers going only in state; these charges dismissed because no IC



United States v. Woodruff, 941 F.Supp. 910 (N.D.Cal. 1996): Hobbs dismissal: robbery case with no IC affect.



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