The Baseball Clause
December 05, 2004
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.