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
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):
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
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
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
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
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.
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
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
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
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
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
"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
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.