MAYOR OF NEW YORK v. MILN 11 Peters 102 (1837)

This was the first case decided by the taney court involving a commerce clause issue, and the Supreme Court finessed that issue. Justice joseph story, dissenting alone, said that he took consolation in knowing that the late Chief Justice (john marshall) concurred in his view that the city of New York had unconstitutionally regulated foreign commerce, a subject exclusively belonging to Congress. The city required incoming ship captains to supply vital statistics on every immigrant they brought to harbor. The city argued that passengers were not commerce, but if they were, the voyage having ceased, no foreign commerce was involved; the requirement of the information on passengers was an exercise of the police power, a precautionary measure against paupers, vagabonds, convicts, and pestilence.

By a vote of 6–1, in an opinion by Justice philip barbour, the Court sustained the regulation as a valid exercise of the police power. Barbour disavowed giving any opinion on the question whether the states shared concurrent powers over foreign commerce. Justice smith thompson, concurring separately, agreed with Story that the facts showed a regulation of foreign commerce, but he believed that in the absence of congressional legislation, the states retained a concurrent power. The early and simplistic victory for the police power in this case solved little, because the Court did not face the question of the scope of the police powers when they affected subjects of commerce.

Leonard W. Levy
(1986)