10. Is this proposed federal statute likely to be constitutional?

The Thirteenth Amendment provides that neither slavery nor involuntary servitude shall exist in the United States. It was passed to eradicate slavery of African-American people and may be invoked to combat the adversity incident to slavery that exists still today. Congress has the power to enforce the Thirteenth Amendment by appropriate legislation, which is not explicitly limited to governmental action. This means that this Amendment can be a useful source of congressional power to reach certain private conduct. Under Jones v. Mayer, 392 U.S. 409 (1968), Congress can pass legislation that it rationally concludes is «necessary and proper for abolishing all badges and incidents of slavery in the United States» (quoting other civil rights cases). Discrimination that is banned under the Thirteenth Amendment must be purposeful and invidious on grounds of race, ancestry, or ethnic background.

There is no independent congressional power to pursue the «general welfare.» The only relevance of general welfare is that Congress, when it taxes and spends, must be pursuing the general welfare (a requirement that has very little independent significance today).

Regarding activities that have a substantial effect on interstate commerce, when those activities are intrastate, the Court will uphold the regulation if it is of economic or commercial activity and if it can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. Gonzales v. Raich, 545 U.S. 1 (2005).

The Tenth Amendment provides that all powers not delegated to the federal government by the Constitution are reserved to the states (or to the people). However, given the expansive interpretation of federal powers (e.g., the commerce power), little state power is exclusive.

B is correct. The proposed statute is likely to be constitutional on the basis that it is within congressional power to enforce the Thirteenth Amendment through legislation that abolishes badges and incidents of slavery in the U.S. This includes racial discrimination that is purposeful and invidious. A statute prohibiting all types of discrimination against Black people on the basis of their race in every public and private business context is likely to be considered a rational means of enforcing the Thirteenth Amendment.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the statute is likely to be constitutional, it is not because of the congressional power to promote the general welfare. The General Welfare Clause only gives Congress the power to pass laws promoting the general welfare when exercising its taxing and spending power. The proposed statute falls under neither of those categories and as such, this would not be the appropriate basis for finding it constitutional.

C is incorrect. Congress does have the power to regulate purely intrastate transactions when they are commercial in nature and in the aggregate, substantially affect interstate commerce. Moreover, this «substantial effects» rule does not apply here because the business transactions, by their very nature, would impact the stream of commerce.

D is incorrect. The Tenth Amendment does not render this proposed statute unconstitutional for at least two reasons. First, states hold no special powers to regulate business transactions under the Tenth Amendment. Second, the Tenth Amendment reserves to the states any powers not delegated to the federal government by the Constitution, but here, the Thirteenth Amendment grants Congress the power to enact this legislation, as explained above.