CRS Annotated Constitution

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Civil Rights.—It had been generally established some time ago that Congress had power under the commerce clause to prohibit racial discrimination in the use of the channels of commerce.821 The power under the clause to forbid discrimination within the States was firmly and unanimously sustained by the Court when Congress in 1964 enacted a comprehensive measure outlawing discrimination because of race or color in access to public accommodations with a requisite connection to interstate commerce.822 Hotels and motels were declared covered, that is, declared to “affect commerce,” if they provided lodging to transient guests; restaurants, cafeterias, and the like, were covered only if they served or offered to serve interstate travelers or if a substantial portion of the food which they served had moved in commerce.823 The Court sustained the Act as applied to a downtown Atlanta motel which did serve interstate travelers,824 to an out–of– the–way restaurant in Birmingham that catered to a local clientele but which had spent 46 percent of its previous year’s out–go on meat from a local supplier who had procured it from out–of–state,825 and to a rurally–located amusement area operating a snack bar and other facilities, which advertised in a manner likely to attract an interstate clientele and that served food a substantial portion of which came from outside the State.826

Writing for the Court in Heart of Atlanta Motel and McClung, Justice Clark denied that Congress was disabled from regulating the operations of motels or restaurants because those operations may be, or may appear to be, “local” in character. “[T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.”827


But, it was objected, Congress is regulating on the basis of moral judgments and not to facilitate commercial intercourse. “That Congress [may legislate] . . . against moral wrongs . . . rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.”828 The evidence did, in fact, noted the Justice, support Congress’ conclusion that racial discrimination impeded interstate travel by more than 20 million black citizens, which was an impairment Congress could legislate to remove.829

The commerce clause basis for civil rights legislation in respect to private discrimination was important because of the understanding that Congress’ power to act under the Fourteenth and Fifteenth Amendments was limited to official discrimination.830 The Court’s subsequent determination that Congress is not necessarily so limited in its power reduces greatly the importance of the commerce clause in this area.831

Criminal Law.—Federal criminal jurisdiction based on the commerce power, and frequently combined with the postal power, has historically been an auxiliary criminal jurisdiction. That is, Congress has made federal crimes of acts that constitutes state crimes on the basis of some contact, however tangential, with a matter subject to congressional regulation even though the federal interest in the acts may be minimal.832 Examples of this type of federal criminal statute abound, including the Mann Act designed[p.209]to outlaw interstate white slavery,833 the Dyer Act punishing interstate transportation of stolen automobiles,834 and the Lindbergh Law punishing interstate transportation of kidnapped persons.835 But, just as in other areas, Congress has passed beyond a proscription of the use of interstate facilities in the commission of a crime, it has in the criminal law area expanded the scope of its jurisdiction. Typical of this expansion is a statute making it a federal offense to “in any way or degree obstruct . . . delay . . . or affect . . . commerce . . . by robbery or extortion. . . .”836 With the expansion of the scope of the reach of “commerce” the statute potentially could reach crimes involving practically all business concerns, although it appears to be used principally against organized crime.

To date, the most far–reaching measure to be sustained by the Court has been the “loan–sharking” prohibition of the Consumer Credit Protection Act.837 The title affirmatively finds that extortionate credit transactions affect interstate commerce because loan sharks are in a class largely controlled by organized crime with a substantially adverse effect on interstate commerce. Upholding the statute, the Court found that though individual loan–sharking activities may be intrastate in nature, still it is within Congress’ power to determine that it was within a class the activities of which did affect interstate commerce, thus affording Congress power to regulate the entire class.838

Expansion of federal criminal jurisdiction proceeds apace with the outflow from each Congress.839


821 Boynton v. Virginia, 364 U.S. 454 (1960); Henderson v. United States, 339 U.S. 816 (1950); Mitchell v. United States, 313 U.S. 80 (1941); Morgan v. Virginia, 328 U.S. 373 (1946).
822 Civil Rights Act of 1964, Title II, 78 Stat. 241, 243 , 42 U.S.C. Sec. 2000a et seq.
823 42 U.S.C. Sec. 2000a (b).
824 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
825 Katzenbach v. McClung, 379 U.S. 294 (1964).
826 Daniel v. Paul, 395 U.S. 298 (1969).
827 Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 301–304 (1964).
828 Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964).
829 Id., 252–253; Katzenbach v. McClung, 379 U.S. 294, 299–301 (1964).
830 Civil Rights Cases, 109 U.S. 3 (1883); United States v. Reese, 92 U.S. 214 (1876); Collins v. Hardyman, 341 U.S. 651 (1951).
831 The “open housing” provision of the 1968 Civil Rights Act, Title VIII, 82 Stat. 73, 81 , 42 U.S.C. Sec. 3601 , was based on the commerce clause, but in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court held that antidiscrimination–in–housing legislation could be based on the Thirteenth Amendment and made operative against private parties. Similarly, the Court has concluded that although Sec. 1 of the Fourteenth Amendment is judicially enforceable only against “state action,” Congress is not so limited under its enforcement authorization of Sec. 5. United States v. Guest, 383 U.S. 745, 761, 774 (1966) (concurring opinions); Griffin v. Breckenridge, 403 U.S. 88 (1971).
832 E.g., Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); Lewis v. United States, 445 U.S. 55 (1980); McElroy v. United States, 455 U. S. 642 (1982).
833 18 U.S.C. Sec. 2421 .
834 18 U.S.C. Sec. 2312 .
835 18 U.S.C. Sec. 1201 .
836 18 U.S.C. Sec. 1951 . And see, 18 U.S.C. Sec. 1952 .
837 Title II, 82 Stat. 159 (1968), 18 U.S.C. Sec. 891 et seq.
838 Perez v. United States, 402 U.S. 146 (1971). See also Russell v. United States, 471 U.S. 858 (1985).
839 E.g., laws that bar firearms within a 1000 feet of a school, 104 Stat. 4844 (1990), 18 U.S.C. Sec. 922 (q), and that punish carjacking when a firearm is used. 106 Stat. 3384 (1992), 18 U.S.C. Sec. 2119 .
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