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Rendition of the Port of Philadelphia in the mid-1800s.
In the mid-1800s, the Port of Philadelphia was the site of a historic legal battle that culminated in the landmark decision Cooley v. Board of Wardens.

Reproduction courtesy of the Library of Congress
Cooley v. Board of Wardens (1852)

In Cooley v. Board of Wardens (1852) the question before the Supreme Court was whether the grant of power to Congress in Article I Section 8 of the Constitution automatically prohibited all state legislation touching interstate commerce. Speaking for the Court, Justice Benjamin Curtis ruled that when local circumstances made it necessary the states could regulate interstate commerce, providing that such regulations did not conflict with federal law.

In 1803, the state of Pennsylvania passed a law requiring all ships entering and leaving the Port of Philadelphia to hire a local pilot or be subjected to a fine of one-half the pilotage fee. Fines were paid to the Board of Wardens of the Port of Philadelphia, which used the payments to support retired local pilots and their families. Aaron Cooley owned a ship that entered the Port of Philadelphia without hiring a local pilot. The Board of Wardens imposed fines on Cooley that went unpaid. The board then brought an action against Cooley in a Pennsylvania court for collection of his unpaid debts.

In defense, Cooley argued that the Pennsylvania law was an unconstitutional regulation of interstate commerce because it acted as a "duty" against out-of-state shippers for the benefit of local ship pilots. Cooley claimed that Congress had exclusive power to regulate interstate commerce, which preempted state regulation in the field. The state court rejected that argument and ruled against Cooley. The judgment was affirmed by the Supreme Court of Pennsylvania on appeal. The U.S. Supreme Court reviewed the case in 1852.

The Court held that the Pilot Law was constitutional and affirmed the state court's ruling against Cooley. The Constitution's Commerce Clause grants, "Congress shall have power to regulate commerce...among the several states." The Court acknowledged that the Pennsylvania law "regulated commerce between the several states" because it involved navigation and concerned the activities of commercial shippers. Nevertheless, the Court ruled that Congress lacked exclusive power over interstate commerce, noting that the actual text of the Commerce Clause does not expressly exclude the states from regulating aspects of interstate commerce. Finally, the Court devised a method to allocate state and federal power over interstate commerce: the subject of the commerce involved. If the subject is more "national" in nature (such as duties imposed on borders), it is exclusively within the federal government's domain of regulation, even if the federal government has not legislated on the matter. If the subject is local in character and Congress has not acted on this subject, it is within the domain of state regulation (such as requirements to carry local pilots on ships).

Cooley v. Board of Wardens set in place a pragmatic approach to interstate commerce regulation, one that left the Court free to settle future disputes on a case-by-case basis. Today, the Court generally holds unconstitutional any state law found to impose commercial rules benefiting in-state traders at the expense of out-of-state traders (the "Dormant Commerce Clause" theory).

AUTHOR'S BIO
Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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