Cooley v. Board of Wardens (1852)
In Cooley v. Board of Wardens (1852), the U.S. Supreme Court, by a vote of 7–2, upheld the constitutionality of a Pennsylvania law that required all ships entering or leaving the Port of Philadelphia to hire a local pilot. States may regulate interstate commerce, said the Court in an opinion authored by Justice Benjamin Curtis, as long as there is no prohibition in federal law and the subject on which the state is legislating does not require a uniform national policy. This so-called Cooley Rule has stood the test of time and guides state and federal courts today.
Article I, Section 8, Clause 3, of the U.S. Constitution grants to Congress the power “to regulate commerce with foreign nations, and among the several states.” During the First Congress (1789–91), two interpretations of the nature of this power were put forward. Some members of Congress expressed the view that the federal commerce power was exclusive. It was a prohibition on state regulation of interstate and foreign commerce. Another example of an exclusive federal power is Congress’s authority to make laws for the seat of the national government, currently the District of Columbia. Those who made this argument feared that local and state laws would interfere with the free flow of commerce, as they had under the Articles of Confederation (1781–88), and render impossible the achievement of a single, national, common market, on which the country’s economic growth and prosperity depended. Other members of the First Congress considered the commerce power analogous to the taxing power. They are concurrent powers, with both the states and the federal government enjoying authority to impose taxes and regulate interstate and foreign commerce. Those who supported this reading feared interference with the autonomy retained by the states under the Constitution over their local affairs.
The Supreme Court first addressed the question of the nature of the commerce power in Gibbons v. Ogden (1824). The Court found a New York law granting a monopoly over the operation of steamboats between New York and New Jersey unconstitutional because it conflicted with an Act of Congress regulating navigation of the coastal waters of the United States. Speaking for a unanimous Court, Chief Justice John Marshall held that the commerce power was neither exclusive nor concurrent. The states were free to make laws governing their internal commerce and to exercise their police power, the authority to protect the health, safety, welfare, and morals of their people. The congressional power to regulate interstate commerce, however, is supreme when exercised and all conflicting state laws are void. Marshall, however, did not say whether states could regulate interstate commerce in the absence of federal legislation.
The Supreme Court addressed the question of the extent of state power when the federal commerce authority lies in its “dormant,” or negative, state in Cooley. Justice Benjamin Curtis acknowledged that under its commerce power, Congress can regulate all aspects of navigation, including the hiring of pilots. Whether ship captains can safely enter and leave a port without turning their ship over to a local pilot varies from port to port. Rather than pass a uniform law on this question, Congress in 1789 adopted the state pilotage laws, thus giving them the force of federal legislation. The Pennsylvania law challenged in Cooley, however, was not passed until 1803. The majority, nevertheless, considered the law valid because the subject of engaging pilots lends itself to diverse legislation at the local level. The silence of Congress expresses that body’s intent to leave pilot laws up to the states. Justice Curtis, however, said that the states are not free to regulate all aspects of interstate commerce when Congress is silent. Some subjects of interstate commerce require a uniform system of regulation throughout the nation. On these subjects, the commerce power is exclusive and only Congress can legislate. Cooley, however, provided no guidance on which subjects required a single national rule.
Justice John McLean in his dissenting opinion quoted from Marshall’s opinion in Gibbons v. Ogden. Marshall said that after the adoption of the Constitution, the states lost their power to regulate the conduct of pilots. These state laws would have been of no effect if the First Congress had not in 1789 adopted them and made them federal law. McLean insisted that Marshall considered the regulation of pilots to be part of the exclusive power of Congress to regulate interstate and foreign commerce. McLean said that the decision of the majority in Cooley would adversely affect the commercial prosperity of the country.
Justice Curtis’s majority opinion in favor of the challenged state law in Cooley was consistent with the pattern of the Court under Chief Justice Roger Taney. The Taney Court (1836–64) was considerably more sympathetic to the claims of state power than the Marshall Court (1801–35) had been. Cooley enlarged the reserved powers of the states, recognizing a power in them to regulate interstate and foreign commerce in the absence of congressional prohibitions.
The Cooley rule led to a significant increase in judicial power because the courts had to decide in a series of subsequent cases whether a particular subject of interstate commerce required a uniform national rule. An alternative reading of the commerce power is that Congress is the proper judge of whether a state law burdens interstate commerce. After all, the Constitution grants to Congress, not the courts, the power to regulate commerce among the states. Under this interpretation, congressional silence implies congressional acquiescence in what the states are doing. The Cooley precedent led to cases such as Southern Pacific Company v. State of Arizona (1945). For safety reasons, Arizona, exercising its police power, limited the number of railroad cars per train that could pass through the state. Although there was no congressional prohibition on such laws, the Supreme Court invalidated the Arizona limitation as an excessive burden on interstate commerce. Chief Justice Harlan Stone (1941–46) asserted that Congress had left it to the courts to formulate rules interpreting the Commerce Clause because of the danger that the states posed to the commerce of the nation and the fact that judges had proven themselves capable of determining the facts necessary to render an informed judgment.
These cases, in which the Court balances the benefits to the local jurisdiction of a particular regulation of interstate commerce against the costs to the national economy, were to Justice Hugo Black unacceptable instances of judicial activism. Dissenting in the Arizona case, Justice Black advocated judicial abstention in negative Commerce Clause cases. The local law, he said, was the will of the people of Arizona. Congress’s silence represents the will of the American people that train-length limitations that vary from state to state are acceptable. The Cooley rule, he concluded, violates the democratic principle. The Court, he claimed, had made itself into a superlegislature and was making factual determinations and policy decisions that it was not suited to make. The rule, however, stands, and state and local governments remain free to pass laws affecting interstate commerce that are valid as long as Congress takes no action to nullify them. One reason for the Cooley rule’s longevity is that both liberal and conservative justices find it attractive. Conservative judges do not hesitate to exercise judicial review to strike down state and municipal laws that impose unacceptable costs on business. Examples include environmental and health and safety laws. Liberal judges, on the other hand, support such state legislation and want to protect it even in the absence of congressional action.
Jacob W. Landynski and Saul K. Padover, The Living U.S. Constitution: Historical Background, Landmark Supreme Court Decisions (New York: Meridian, 1995); Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1995); John R. Vile, A Companion to the United States Constitution and Its Amendments (Westport, CT: Praeger, 2001); and William M. Wiecek and Stanley L. Kutler, Liberty under Law: The Supreme Court in American Life (Baltimore: Johns Hopkins University Press, 1988).
Kenneth M. Holland
Last updated: 2006