FOREIGN COMMERCE; PROTECTIVE TARIFFS
Tariff laws have customarily contained prohibitory provisions, and such provisions have been sustained by the Court under Congress's revenue powers ([see above]) and under its power to regulate foreign commerce. Speaking for the Court in University of Illinois v. United States,[474] in 1933, Chief Justice Hughes said: "The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted. No one can be said to have a vested right to carry on foreign commerce with the United States. * * * It is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. * * * It is also true that the taxing power embraces the power to lay duties. Art. I, § 8, cl. 1. But because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons v. Ogden, 9 Wheat. 1, 202. 'Under the power to regulate foreign commerce Congress impose duties on importations, give drawbacks, pass embargo and nonintercourse laws, and make all other regulations necessary to navigation, to the safety of passengers, and the protection of property.' Groves v. Slaughter, 15 Pet. 449, 505. The laying of duties is 'a common means of executing the power.' 2 Story on the Constitution, § 1088."[475]
FOREIGN COMMERCE; BANNED ARTICLES
The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since 1842. In that year it forbade the importation of obscene literature or pictures from abroad.[476] Six years later it passed an act "to prevent the importation of spurious and adulterated drugs" and to provide a system of inspection to make the prohibition effective.[477] Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887 the importation by Chinese nationals of smoking opium was prohibited,[478] and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it.[479] In 1897 Congress forbade the importation of any tea "inferior in purity, quality, and fitness for consumption" as compared with a legal standard.[480] The act was sustained in 1904, in the leading case of Buttfield v. Stranahan.[481] In "The Abby Dodge" case an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained, but construed as not applying to sponges taken from the territorial waters of a State.[482] In Weber v. Freed[483] an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. Speaking for the unanimous Court, Chief Justice White said: "In view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this court, the contentions are so devoid of merit as to cause them to be frivolous."[484] In Brolan v. United States[485] the Court again stressed the absolute nature of Congress's power over foreign commerce, saying: "In the argument reference is made to decisions of this court dealing with the subject of the power of Congress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[486]
INTERSTATE COMMERCE; CONFLICT OF DOCTRINE AND OPINION
The question whether Congress's power to regulate commerce "among the several States" embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution's interpretation, a debate the final resolution of which in favor of Congressional power is an event of first importance for the future of American Federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade.[487] The debate was concluded ninety-nine years later by the decision in United States v. Darby, in which the Fair Labor Standards Act was sustained. The résumé of it which is given below is based on judicial opinions, arguments of counsel, and the writings of jurists and political scientists. Much of this material was evoked by efforts of Congress, from about 1905 onward, to stop the shipment interstate of the products of child labor.
ACTS OF CONGRESS PROHIBITIVE OF INTERSTATE COMMERCE
The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884 the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden.[488] In 1903 power was conferred upon the Secretary of Agriculture to establish regulations to prevent the spread of such diseases through foreign or interstate commerce.[489] In 1905 the same official was authorized to lay an absolute embargo or quarantine upon all shipments of cattle from one State to another when the public necessity might demand it.[490] A statute passed in 1905 forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation.[491] In 1912 a similar exclusion of diseased nursery stock was decreed,[492] while by the same act, and again by an act of 1917,[493] the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those above described for the prevention of the spread of animal disease. While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce,[494] this view has today been abandoned. See pp. [248-249].
The first case to come before the Court in which the issues discussed above were canvassed at all thoroughly was Champion v. Ames,[495] involving the act of 1895 "for the suppression of lotteries."[496] An earlier act excluding lottery tickets from the mails had been upheld in the earlier case of In re Rapier,[497] on the proposition that Congress clearly had the power to see that the very facilities furnished by it were not put to bad uses. But in the case of commerce the facilities are not ordinarily furnished by the National Government, and the right to engage in foreign and interstate commerce comes from the Constitution itself, or is anterior to it.