The Commerce Clause & Desegregation

Unless you’ve been living on the moon, under a rock, with your eyes shut and your fingers in your ears, you’ll have heard that conservative activists nationwide have sued the government to enjoin, and therefore destroy, the carefully-balanced and carefully-wrought Affordable Care Act. As it turns out, judicial activism is more about result than process: who would’ve thought?!

They’re not doing so hot. The first suit was tossed out last Thursday. We can expect many more such dismissals to follow. Still, even if the constitutionality question is one that the Courts are quite equipped to handle, conservatives like to tease those of our ideological brethren who can’t quite explain why the Act is or should be constitutional. Truly, that’s kind of unfair. Tea partiers can quote constitutional chapter and verse, but that’s rather an empty talent, set against their patent inability to understand what they’re saying, or conceptualize the document as something more than a way of enshrining a foregone, glorious past that never was. We might compare your average amateur constitutional scholar cum tea partier to a particularly smart parrot, with a particularly media-savvy owner.

Unfortunately, sometimes, that last bit is all that matters. Which is why it’s worth noting that Rep. Schakowsky (D-Ill.) was right when she drew an analogy between the Congress’ power to regulate healthcare, and its ability to mandate desegregation. The Supreme Court has previously commented, in dicta, that desegregation would be sustainable under the Enforcement Clause of the Fourteenth Amendment (the Thirteenth and Fifteenth have their own clauses, but are inapposite). But it has previously held that Congress could end mandatory desegregation, separately and independently, on the basis of the Commerce Clause, in any public establishment that engages, even loosely, in interstate commerce. Take a Georgia restaurant that ships in lettuce to make its patented Jeff Davis-burgers. The lettuce is from Alabama, you say? Boom, regulable.

Admittedly, this is a bit of a stretch, and the result probably only obtains because desegregation occupies a very unique place in American law. The rules bent to accommodate a very necessary result. Healthcare is actually a much easier call. Unlike desegregation, the Act is aimed squarely, not indirectly, at the regulation of economic behavior. But if Schakowsky was looking for an example of just how broadly the Commerce Clause runs, she could hardly have picked a better one.



  1. Isn’t there a bit of a problem there? If the Commerce Clause only applies to inter-state commerce, then what about companies that exclusively operate in and buy from their own state? Would they be immune from Congressional desegregation or the new health care act?

  2. They would! But those turn out to be excruciatingly hard to find. It’s fair to say that a true intrastate business no longer exists in These United States.

    1. What case was it that was the origins of “stream of commerce”? I can’t remember at the moment and don’t remember where my undergrad conlaw notes are. Anyway, that seems to be what makes intrastate businesses being hard to find relevant. After all, if interstate commerce is only interstate transactions, then intrastate transactions, which are easy to find, can’t be touched.

      Also… I’m pretty sure the Supreme Court has held that desegregation could be implemented via the 14th, not just dictaed it. Take the Shelley v. Kraemer reasoning, apply it to enforcement of criminal trespass laws and the like instead of enforcement of CCRs, and you’ve squashed private segregation. I think. Kinda clunky, I admit… but it still seems better than stretching the sweep of the commerce clause. Not that the desegregation cases expanded its reach the way Gonzalez v. Raich did…

  3. I think “stream of commerce” is a jurisdictional principle… are you thinking, say, Asahi Motors, or whatever that case was?

    And Shelly really is a crazy case. I don’t know how whoever it was convinced them to do that, but I’m glad they did. Still, though, racial covenants are probably distinguishable from de jure desegregation (public v private).

    1. No, Asahi’s not as old as the case I’m thinking of. I’m thinking it was 19th century, something to do with cattle cars and stockyards. Or it was Gibbons v. Ogden.

      Wasn’t Shelley all about saying that any government act to give private segregation teeth triggers the 14th Amendment? So… you put up a sign at your business, “Humans only.”. In walks a Cylon. How do you enforce your private discrimination? Call the cops and get the Cylon arrested for trespassing. But Shelley says that makes the cops a party to the discrimination, so the business can’t be segregated because the sign can only be for show.

      Is that a fair read of Shelley?

  4. That is a fair read of Shelley: and also demonstrates why the case is so crazy. I think my civpro professor said that the Court has since realized how absurd it is, and doesn’t really cite that principle as law. Because if it was, any private act, if it turns ugly, becomes state action, and that’s ridiculous.

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