136
Souter, J., dissenting
we had long understood "affecting commerce" to be the quintessential expression of an intended plenary exercise of commerce power. 513 U. S., at 273-274; see also Wickard v. Filburn, 317 U. S. 111 (1942).
Again looking to the context of the time, I reach the same conclusion about the phrase "engaged in commerce" as a description of employment contracts exempted from the Act. When the Act was passed (and the commerce power was closely confined) our case law indicated that the only employment relationships subject to the commerce power were those in which workers were actually engaged in interstate commerce. Compare The Employers' Liability Cases, 207 U. S. 463, 496, 498 (1908) (suggesting that regulation of the employment relations of railroad employees "actually engaged in an operation of interstate commerce" is permissible under the Commerce Clause but that regulation of a railroad company's clerical force is not), with Hammer v. Dagenhart, 247 U. S. 251, 271-276 (1918) (invalidating statute that had the "necessary effect" of "regulat[ing] the hours of labor of children in factories and mines within the States"). Thus, by using "engaged in" for the exclusion, Congress showed an intent to exclude to the limit of its power to cover employment contracts in the first place, and it did so just as clearly as its use of "involving commerce" showed its intent to legislate to the hilt over commercial contracts at a more general level. That conclusion is in fact borne out by the statement of the then-Secretary of Commerce, Herbert Hoover, who suggested to Congress that the § 1 exclusion language should be adopted "[i]f objection appears to the inclusion of workers' contracts in the law's scheme." Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 14 (1923) (hereinafter Hearing on S. 4213 et al.).
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