The Baseball Clause

Congress is limited to enumerated powers.  Each power is referred to, in shorthand, as a clause.  Thus, "The Congress shall have Power ... to regulate Commerce" is the Commerce Clause. 

Hidden in the text of the Constitution is also the Baseball Clause.  Congress, it seems, has the power to regulate baseball.

US Senator John McCain warned that Congress may consider imposing drug tests on major league baseball players, as Washington tries to stem the damage from a raging doping scandal that has discredited professional sport.

"I will introduce legislation in January that requires some kind of regimen for testing of Major League baseball players. And I believe that we can pass it through the Congress of the United States," Senator John McCain told the "Fox News Sunday" television program. McCain said he will await the outcome of that meeting this week of the Major League baseball players' union before making any moves.

"I hate for us to interfere with it," said McCain who, as chairman of the Senate's Commerce Committee, heads the congressional authority with oversight over professional sports.

But he added: "Antitrust exemption was granted by Congress to organize baseball, and also it's got to do with interstate commerce. So we do have a role to play."

Baseball players' using steroids substantially affects interest commerce because drugged atheletes hit the baseballs much higher and farther into the air.  And air, as we know, is a channel or instrumentality of interestate commerce.  And so Congress may reach it.  Moreover, athletes who use steroids perform better and thus make more money.  Money comes from banks in several different states.  Thus, money moves across state lines because of steroids.  I shall now remove my tongue from my cheek.

I'm sure this will be very popular legislation.  If we listed "baseball," "grandma's apple pie," and "anabolic steroids" and then asked, "What does not belong here?" the answer would be clear.  But popular must never trump constitutional.

In any event, David Giacalone has informed me that baseball is not interstate commerce.  Justice Holmes agreed (or is that the other way around?), writing in Federal Club v. National League:

The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words.

For whatever reason, baseball seems to have been exempted from the sweep of the Commerce Clause, even under its modern (mis)understanding.

Comments

[David Giacalone]

Michael, you seem to have forgotten that the U.S. Supreme Court ruled in Federal Club v. National League, 259 U.S. 200 (1922), that baseball is not commerce. You can find a handful of annotated links on this topic in the American Antitrust Institute's Guide to Antitrust Resources on the Web.

If using steriods reduces trust in the game, is an antitrust exemption relevant?

[Federalism]

David is referring to this quote (per Justice Holmes):

"The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words."

[Greg]

I have to say I disagree with your analysis that professional baseball is not part of interstate commerce. In a later Supreme Court opinion, Flood v. Kuhn, the court states explicitly that professional baseball is a business in interstate commerce. I have more in a post on the Sports Law Blog and would be interested in your thoughts.

[David Giacalone]

I'm going to have swallow my pride and start using emoticons when I'm pulling an e-leg. My original Comment about baseball, interstate commerce and Federal Club was in the spirit of Mike's tongue-in-cheek approach to this topic. As an old trustbuster, the Federal Club case has long been a thorn in my side, since it declared in 1922 that baseball is not commerce and the antitrust laws could not be applied to baseball, and the Supreme Court and lower courts have refused to overturn that determination in the antitrust realm, saying it expects Congress to act in order to show its intent before taking another look.

I had hoped this strange case would pique Mike's interest in further research, given his federalist heart, but soon realized that he has other priorities, being in the midst of his last week of law school exams.

There is no doubt that in real life baseball is interstate commerce under any potential test other than stare decisis, and I would hope the Supreme Court would so decide in a case outside the antitrust realm. Right now, the Court's assertion in Flood is merely dictum, as it was not needed for the conclusion in that case -- which once again upheld the antitrust exemption granted in Federal Club. How the current "conservative" Supreme Court will apply stare decisis remains to be seen, but I tend to lean toward Greg's prediction that common sense will prevail. See more at my post baseball: intestate commerce (stare decisis on steroids?)

[Ralph]

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Yes, but it will be hard to defeat the pervasive and corrupting influence of grandma's apple pie in this modern age of terrorism.