late in areas that do not at first glance appear to trigger interstate commerce,
such as the local manufacture and consumption of a product consistent with
66 Congress can regulate purely intrastate activity as long as such
activity has a “substantial effect” on interstate commerce when considered
in the aggregate.
67 Commerce authority can thus be used to ban products
from commerce, either through direct legislation or agency rulings or regulations.
Congress can also indirectly ban or limit consumer goods through its tax
and spend powers.
68 The power to set tax levels means Congress can discourage risky behavior, such as smoking,
69 and reward health-promoting
activities, such as physical exercise.
70 Congress can similarly use its spending power to influence state lawmaking so long as its efforts are not unduly
coercive upon states.
71 To encourage states to change the drinking age, for
example, Congress passed a law in 1984 that withheld highway funds from
states that did not raise their legal drinking age from eighteen to twenty-one.
72 The spending measure effectively banned alcohol use among eighteen to twenty-one year-olds even though the impetus was to prevent high-way-related deaths and injuries due to alcohol use. Spending powers further
allow Congress to indirectly regulate or ban products by determining which
federal agencies or research projects to fund. In 2008, for example, Congress provided CPSC with more resources to regulate toys containing
66. Wickard v. Filburn, 317 U.S. 111 (1942); Gonzales v. Raich, 545 U.S. 1 (2005).
67. Congress is authorized to regulate non-economic local activity if the regulation is “a
necessary part of a more general regulation of interstate commerce.” Gonzales, 545 U.S. at
37 (citing United States v. Lopez, 514 U.S. 549, 561 (1995)).
68. U.S. CONST. art. 1 § 8.
69. Lawrence O. Gostin, Public Health Theory and Practice in the Constitutional Design, 11 HEALTH MATRIX 265, 273 (2001).
70. For example, the Affordable Care Act provides financial incentives for workplace
wellness programs. Laura Anderko et al., Promoting Prevention Through the Affordable
Care Act: Workplace Wellness, 9 PREVENTING CHRONIC DISEASE E175 (2012). Congress
continues to raise taxes on cigarettes, which significantly curbs the average consumer’s ability to purchase them. K. J. Meier & M. J. Licari, The Effect of Cigarette Taxes on Cigarette
Consumption, 1955 through 1994, 87 AM. J. PUB. HEALTH 1126 (1997) (finding increased
taxes on cigarettes are associated with less tobacco consumption); see also Prabhat Jha &
Richard Peto, Global Effects of Smoking, of Quitting, and of Taxing Tobacco, 370 N. ENGL.
J. MED. 60 (2014).
71. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (“Congress
may use its spending power to create incentives for States to act in accordance with federal
policies. But when ‘pressure turns into compulsion’ . . . the legislation runs contrary to our
system of federalism.”).
72. S. D. v. Dole, 483 U.S. 203, 211-12 (1987). Congress passed the National Minimum
Drinking Age Act in 1984, which withheld five percent of federal highway funding from
states that did not maintain a minimum legal drinking age of twenty-one. 23 U.S. C. A. § 158
(West, WestlawNext through Pub. L. No. 113-93 (excluding Pub. L. No. 113-79) approved
Apr. 1, 2014).