SUPREME COURT AND SEPARATION OF POWERS

This essay analyzes the decisions of the Supreme Court on the Commerce Clause, U.S. Const., Article I, Section 8 (2), and the separation of federal and state power, as illustrated by selected cases, and examines critically the propositions advanced in the cited statement.

The statement grossly oversimplifies the course of Supreme Court interpretations of the Commerce Clause. According to it, the Court has erred whenever it has substituted its subjective judgments in interpreting that clause, particularly whenever those judgments have differed from the view of the people as expressed through congressional legislation. In fact, Court interpretations of the Commerce Clause have sometimes been subjective but, in general, the Court, despite many twists and turns, has flexibly interpreted the Commerce Clause in a manner which has permitted it to respond to the changing needs of a federal system. Generally its decisions have been in the direction of a "restraintist" interpretation which upholds congressional legislation and expanded federal powers but also at other times stressed the need to defend states rights against encroachments of federal power.

The Court of Chief Justice John Marshall was faced with the necessity of interpreting the Commerce Clause broadly so as to establish federal power to regulate interstate commerce and to prevent attempts by states to usurp federal power, impose local monopolies and to interfere with the exe

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ases in the 1940s which greatly expanded federal powers to regulate interstate commerce at the expense of 'states rights.' In U.S. v. Darby, (312 U.S. 100 (1941)), the Court upheld federal restrictions on the transportation of lumber in interstate commerce which had been produced in violation of the Federal Labor Standards Act. Justice Stone for the majority said that "the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce, subject only to the specific provisions of the Constitution." In Wickard v. Filburn, (317 U.S. 111 (1942)), the Court upheld a marketing penalty imposed on a farmer under the Agricultural Adjustment Act, who had exceeded his marketing quota, even though his produce was raised on a local farm and was intended for consumption on the farm and not for interstate commerce. Justice Jackson for the majority said that his marketing activities, regardless of their local nature, could be regulated by Congress, provided "it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'" During the late 1930s and subsequently, a number of federal statu

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