The Commerce Clause describes an
enumerated power
The enumerated powers (also called expressed powers, explicit powers or delegated powers) of the United States Congress are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers ar ...
listed in the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
(
Article I, Section 8, Clause 3). The clause states that the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
shall have power "to regulate
Commerce
Commerce is the large-scale organized system of activities, functions, procedures and institutions directly and indirectly related to the exchange (buying and selling) of goods and services among two or more parties within local, regional, nation ...
with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.
Dispute exists within the courts as to the range of powers granted to Congress by the Commerce Clause. As noted below, it is often paired with the
Necessary and Proper Clause
The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution:
Since the landmark decision '' McCulloch v. Maryland'', the US Supreme Court has ruled that this clause gr ...
, and the combination used to take a more broad, expansive perspective of these powers.
During the
Marshall Court
The Marshall Court refers to the Supreme Court of the United States from 1801 to 1835, when John Marshall served as the fourth Chief Justice of the United States. Marshall served as Chief Justice until his death, at which point Roger Taney ...
era (1801–1835), interpretation of the Commerce Clause gave Congress jurisdiction over numerous aspects of intrastate and interstate commerce as well as activity that had traditionally been regarded not to be commerce. Starting in 1937, following the end of the
''Lochner'' era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited. Since ''
United States v. Lopez
''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
'' (1995), congressional use of the Commerce Clause has become slightly restricted again to be limited to matters of trade or any other form of restricted area (whether interstate or not) and production (whether commercial or not).
The Commerce Clause is the source of federal
drug prohibition
The prohibition of drugs through sumptuary legislation or religious law is a common means of attempting to prevent the recreational use of certain intoxicating substances.
While some drugs are illegal to possess, many governments regulate the ...
laws under the
Controlled Substances Act
The Controlled Substances Act (CSA) is the statute establishing federal government of the United States, federal drug policy of the United States, U.S. drug policy under which the manufacture, importation, possession, use, and distribution of ...
. In a 2005 medical marijuana case, ''
Gonzales v. Raich
''Gonzales v. Raich'' (previously ''Ashcroft v. Raich''), 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown ca ...
'', the U.S. Supreme Court rejected the argument that the ban on growing medical marijuana for personal use exceeded the powers of Congress under the Commerce Clause. Even if no goods were sold or transported across state lines, the Court found that there could be an indirect effect on interstate commerce and relied heavily on a
New Deal
The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
case, ''
Wickard v. Filburn
''Wickard v. Filburn'', 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New D ...
'', which held that the government may regulate personal cultivation and consumption of crops because the aggregate effect of individual consumption could have an indirect effect on interstate commerce.
Text and pairing
Article I, Section 8, Clause 3:
The significance of the Commerce Clause is described in the Supreme Court's opinion in ''
Gonzales v. Raich
''Gonzales v. Raich'' (previously ''Ashcroft v. Raich''), 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown ca ...
'', :
The Commerce Clause represents one of the most fundamental powers delegated to the Congress by the founders. The outer limits of the Interstate Commerce Clause power have been the subject of long, intense political controversy. Interpretation of the sixteen words of the Commerce Clause has helped define the balance of power between the federal government and the
states and the balance of power between the two elected branches of the federal government and the Judiciary. As such, it directly affects the lives of American citizens.
Significance in federal rights in navigable waters
The commerce clause provides comprehensive powers to the United States over navigable waters. The powers are critical to understand the rights of landowners adjoining or exercising what would otherwise be
riparian rights
Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law herit ...
under the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. The Commerce Clause confers a unique position upon the federal government in connection with navigable waters: "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States.... For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." ''United States v. Rands'', . The ''Rands'' decision continues:
This power to regulate navigation confers upon the United States a dominant servitude, ''FPC v. Niagara Mohawk Power Corp.'', 347 U.S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. ''United States v. Chicago, M., St. P. & P. R. Co.'', 312 U.S. 592, 596–597 (1941); ''Gibson v. United States'', 166 U.S. 269, 275–276 (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, ''South Carolina v. Georgia'', 93 U.S. 4 (1876), or otherwise impair or destroy a riparian owner's access to navigable waters, ''Gibson v. United States'', 166 U.S. 269 (1897); ''Scranton v. Wheeler'', 179 U.S. 141 (1900); ''United States v. Commodore Park, Inc.'', 324 U.S. 386 (1945), even though the market value of the riparian owner's land is substantially diminished.
Other scholars, such as
Robert H. Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Cour ...
and Daniel E. Troy, argue that prior to 1887, the Commerce Clause was rarely invoked by Congress and so a broad interpretation of the word "commerce" was clearly never intended by the Founding Fathers. In support of that claim, they argue that the word "commerce," as used in the
Constitutional Convention and the
Federalist Papers
''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The co ...
, can be substituted with either "trade" or "exchange" interchangeably and still preserve the meaning of those statements. They also point to
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
's statement in an 1828 letter that the "Constitution vests in Congress expressly... 'the power to regulate trade'."
Examining contemporaneous dictionaries does not neatly resolve the matter. For instance, the 1792 edition of
Samuel Johnson
Samuel Johnson (18 September 1709 – 13 December 1784), often called Dr Johnson, was an English writer who made lasting contributions as a poet, playwright, essayist, moralist, critic, biographer, editor and lexicographer. The ''Oxford ...
's ''
A Dictionary of the English Language
''A Dictionary of the English Language'', sometimes published as ''Johnson's Dictionary'', was published on 15 April 1755 and written by Samuel Johnson. It is among the most influential dictionaries in the history of the English language.
T ...
'' defines the noun "commerce" narrowly as "
change of one thing for another; interchange of any thing; trade; traffick," but it defines the corresponding verb "to commerce" more broadly as "
hold intercourse." The word "intercourse" also had a different and wider meaning back in 1792, compared to today.
Early years (1800s–1830s)
Chief Justice
John Marshall
John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
ruled in ''
Gibbons v. Ogden
''Gibbons v. Ogden'', 22 U.S. (9 Wheat.) 1 (1824), was a landmark decision in which the Supreme Court of the United States held that the power to regulate interstate commerce, which was granted to Congress by the Commerce Clause of the United Sta ...
'' (1824) that the power to regulate interstate commerce also included the power to regulate interstate navigation: "Commerce, undoubtedly is traffic, but it is something more—it is intercourse....
power to regulate navigation is as expressly granted, as if that term had been added to the word 'commerce'....
e power of Congress does not stop at the jurisdictional lines of the several
states. It would be a very useless power if it could not pass those lines." The Court's decision contains language supporting one important line of Commerce Clause jurisprudence, the idea that the electoral process of representative government represents the primary limitation on the exercise of the Commerce Clause powers:
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments....
In ''Gibbons'', the Court struck down
New York State
New York, officially the State of New York, is a state in the Northeastern United States. It is often called New York State to distinguish it from its largest city, New York City. With a total area of , New York is the 27th-largest U.S. stat ...
's attempt to grant a steamboat monopoly to
Robert Fulton
Robert Fulton (November 14, 1765 – February 24, 1815) was an American engineer and inventor who is widely credited with developing the world's first commercially successful steamboat, the (also known as ''Clermont''). In 1807, that steamboat ...
, which he had then ultimately franchised to Ogden, who claimed river traffic was not "commerce" under the Commerce Clause and that Congress could not interfere with New York State's grant of an exclusive monopoly within its own borders. Ogden's assertion was untenable: he contended that New York could control river traffic within New York all the way to the border with
New Jersey
New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
and that New Jersey could control river traffic within New Jersey all the way to the border with New York, leaving Congress with the power to control the traffic as it crossed the
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
line.
Thus, Ogden contended, Congress could not invalidate his monopoly if transported passengers only within New York. The Supreme Court, however, found that Congress could invalidate his monopoly since it was operational on an interstate channel of navigation.
In its decision, the Court assumed interstate commerce required movement of the subject of regulation across state borders. The decision contains the following principles, some of which have since been altered by subsequent decisions:
* Commerce is "intercourse, all its branches, and is regulated by prescribing rules for carrying on that intercourse."
* Commerce among the states cannot stop at the external boundary of each state, but may be introduced into the interior.
* Congress can regulate, that is "to prescribe the rule by which commerce is to be governed" that "may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."
Additionally, the Marshall Court limited the extent of federal maritime and admiralty jurisdiction to tidewaters in ''The Steamboat Thomas Jefferson''.
In ''
Cherokee Nation v. Georgia
''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...
'', , the Supreme Court addressed whether the Cherokee nation is a foreign state in the sense in which that term is used in the U.S. constitution. The Court provided a definition of Indian tribe that clearly made the rights of tribes far inferior to those of foreign states:
Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
Dormant Commerce Clause jurisprudence
As explained in ''
United States v. Lopez
''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
'', , "For nearly a century thereafter (that is, after ''Gibbons''), the Court's Commerce Clause decisions dealt but rarely with the extent of Congress' power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce. Under this line of precedent, the Court held that certain categories of activity such as "exhibitions", "production", "manufacturing", and "mining" were within the province of state governments, and thus were beyond the power of Congress under the Commerce Clause. When Congress began to engage in economic regulation on a national scale, the Court's dormant Commerce Clause decisions influenced its approach to Congressional regulation.
In this context, the Court took a formalistic approach, which distinguished between services and commerce, manufacturing and commerce, direct and indirect effects on commerce, and local and national activities. See concurring opinion of Justice Kennedy in ''United States v. Lopez''. ("One approach the Court used to inquire into the lawfulness of state authority was to draw content-based or subject-matter distinctions, thus defining by semantic or formalistic categories those activities that were commerce and those that were not.") The Dormant Commerce Clause formalisms spilled over into its
Article I Article One may refer to:
Legal codes
* Article One of the United States Constitution, pertaining to the powers of the United States Congress
* Article One of the Constitution of India, pertaining to the federal nature of the republic
Other us ...
jurisprudence. While Congress had the power to regulate commerce, it could not regulate manufacturing, which was seen as being entirely local. In ''
Kidd v. Pearson'', , the Court struck a federal law which prohibited the manufacture of liquor for shipment across state lines. Similar decisions were issued with regard to agriculture, mining, oil production, and generation of electricity. In ''
Swift v. United States
''Swift & Co. v. United States'', 196 U.S. 375 (1905), was a case in which the Supreme Court of the United States, United States Supreme Court ruled that the Commerce Clause allowed the federal government to regulate monopolies if it has a direct ...
'', , the Court ruled that the clause covered meatpackers; although their activity was geographically "local", they had an important effect on the "current of commerce", and thus could be regulated under the Commerce Clause. The Court's decision halted price fixing. ''
Stafford v. Wallace'', , upheld a federal law (the
Packers and Stockyards Act
The Packers and Stockyards Act of 1921 ( 7 U.S.C. §§ 181-229b; P&S Act) regulates meatpacking, livestock dealers, market agencies, live poultry dealers, and swine contractors to prohibit unfair or deceptive practices, giving undue preferences, a ...
) regulating the
Chicago
(''City in a Garden''); I Will
, image_map =
, map_caption = Interactive Map of Chicago
, coordinates =
, coordinates_footnotes =
, subdivision_type = Country
, subdivision_name ...
meatpacking industry, because the industry was part of the interstate commerce of beef from ranchers to dinner tables. The stockyards "are but a throat through which the current
f commerce
F, or f, is the sixth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ef'' (pronounced ), and the plural is ''efs''.
Hist ...
flows,"
Chief Justice Taft wrote, referring to the stockyards as "great national public utilities." As Justice Kennedy wrote: (in a concurring opinion to ''
United States v. Lopez
''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
''), "Though that
ormalisticapproach likely would not have survived even if confined to the question of a State's authority to enact legislation, it was not at all propitious when applied to the quite different question of what subjects were within the reach of the national power when Congress chose to exercise it."
Similarly, the court excluded most services by distinguishing them from commerce. In ''
Federal Baseball Club v. National League
''Federal Baseball Club v. National League'', 259 U.S. 200 (1922), is a case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball.
Background
After the Federal League folded in 1915, most of ...
'', 259 U.S. 200 (1922), which was later upheld in ''
Toolson v. New York Yankees'' (1953) and ''
Flood v. Kuhn
''Flood v. Kuhn'', 407 U.S. 258 (1972), was a decision by the Supreme Court of the United States that preserved the reserve clause in Major League Baseball (MLB) players' contracts. By a 5–3 margin, the Court reaffirmed the antitrust exempti ...
'' (1973), the court excluded services not related to production, such as live entertainment, from the definition of commerce:
New Deal
In 1935, the Supreme Court decision in ''
Schecter Poultry Corporation v. United States
''A.L.A. Schechter Poultry Corp. v. United States'', 295 U.S. 495 (1935), was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid ...
'' invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress's power under the commerce clause. The unanimous decision rendered unconstitutional the
National Industrial Recovery Act
The National Industrial Recovery Act of 1933 (NIRA) was a US labor law and consumer law passed by the 73rd US Congress to authorize the president to regulate industry for fair wages and prices that would stimulate economic recovery. It also e ...
, a main component of President
Franklin Roosevelt
Franklin Delano Roosevelt (; ; January 30, 1882April 12, 1945), often referred to by his initials FDR, was an American politician and attorney who served as the 32nd president of the United States from 1933 until his death in 1945. As the ...
's
New Deal
The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
. Again in 1936, in ''
Carter v. Carter Coal Company
''Carter v. Carter Coal Company'', 298 U.S. 238 (1936), is a United States Supreme Court decision interpreting the Commerce Clause of the United States Constitution, which permits the United States Congress to "regulate Commerce... among the seve ...
'', the Supreme Court struck down a key element of the New Deal's regulation of the mining industry on the grounds that mining was not "commerce." In the preceding decades, the Court had struck down a laundry list of progressive legislation: minimum-wage laws, child labor laws, agricultural relief laws, and virtually every other element of the New Deal legislation that had come before it. After winning
re-election in 1936, Roosevelt proposed the
Judicial Procedures Reform Bill of 1937
The Judicial Procedures Reform Bill of 1937, frequently called the "court-packing plan",Epstein, at 451. was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to ...
to allow the President to appoint an additional Justice for each sitting Justice over age 70. Given the age of the current justices, that would allow a Supreme Court of up to 15 Justices. Roosevelt claimed that to be intended to lessen the load on the older Justices, rather than an attempt to achieve a majority that would cease to strike his New Deal acts.
Ultimately, there was widespread opposition to the "court packing" plan, and in the end, Roosevelt abandoned it. However, in what became known as "
the switch in time that saved nine
"The switch in time that saved nine" is the phrase, originally a quip by humorist Cal Tinney, about what was perceived in 1937 as the sudden jurisprudential shift by Associate Justice Owen Roberts of the U.S. Supreme Court in the 1937 case ''Wes ...
," Justice
Owen Roberts
Owen Josephus Roberts (May 2, 1875 – May 17, 1955) was an Associate Justice of the United States Supreme Court from 1930 to 1945. He also led two Roberts Commissions, the first of which investigated the attack on Pearl Harbor, and the seco ...
, shortly after the "court packing" plan was proposed, joined the 5-4 majority opinion in ''
West Coast Hotel Co. v. Parrish
''West Coast Hotel Co. v. Parrish'', 300 U.S. 379 (1937), was a decision by the United States Supreme Court upholding the constitutionality of state minimum wage legislation. The court's decision overturned an earlier holding in ''Adkins v. Child ...
'' (1937). It narrowly upheld a Washington state minimum wage law, abandoning prior jurisprudence, and ended the
Lochner era
The ''Lochner'' era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's o ...
. That essentially marked the beginning of the end of Supreme Court's opposition to the New Deal, which also obviated the "court packing" scheme.
In ''
United States v. Darby Lumber Co.
''United States v. Darby Lumber Co.'', 312 U.S. 100 (1941), was a case in which the United States Supreme Court upheld the Fair Labor Standards Act of 1938, holding that the U.S. Congress had the power under the Commerce Clause to regulate emplo ...
'' (1941), the Court upheld the
Fair Labor Standards Act
The Fair Labor Standards Act of 1938 (FLSA) is a United States labor law that creates the right to a minimum wage, and "time-and-a-half" overtime pay when people work over forty hours a week. It also prohibits employment of minors in "oppres ...
, which regulated the production of goods shipped across state lines. It stated that the
Tenth Amendment "is but a truism" and was not considered to be an independent limitation on congressional power.
In ''
United States v. Wrightwood Dairy Co.
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* ''United'' (2003 film), a Norwegian film
* ''United'' (2011 film), a BBC Two f ...
'' (1942), the Court upheld federal price regulation of intrastate milk commerce:
The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.... The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence, the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.
In ''
Wickard v. Filburn
''Wickard v. Filburn'', 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New D ...
'' (1942), the Court upheld the
Agricultural Adjustment Act of 1938
:''This is an article about the "Agricultural Adjustment Act of 1938". For the act by the same name in 1933, see Agricultural Adjustment Act.''
The Agricultural Adjustment Act of 1938 () was legislation in the United States that was enacted as an ...
, which sought to stabilize wide fluctuations in the market price for wheat. The Court found that Congress could apply national quotas to wheat grown on one's own land for one's own consumption because the total of such local production and consumption could potentially be sufficiently large as to affect the overall national goal of stabilizing prices. The Court cited its recent ''Wrightwood'' decision and decided, "Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us." The Court reiterated Chief Justice Marshall's decision in ''Gibbons'': "He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes." The Court also stated, "The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do."
Thereafter, the Court began to defer to the Congress on the theory that determining whether legislation affected commerce appropriately was a decision that was political and legislative, not judicial. That overall change in the Court's jurisprudence, beginning with ''Parrish'', is often referred to as the ''Constitutional Revolution of 1937'', in which the Court shifted from exercising
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
of legislative acts to protect economic rights to a paradigm that focused most strongly on protecting civil liberties.
It was not until ''
United States v. Lopez
''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
'' (1995) decision, after nearly 60 years of leaving any restraint on the use of the Commerce Clause to political means, that the Court again ruled that a regulation enacted under the Commerce Clause was unconstitutional.
Civil rights
The wide interpretation of the scope of the Commerce Clause continued following the passing of the
Civil Rights Act of 1964
The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...
, which aimed to prevent business from discriminating against black customers. The Supreme Court issued several opinions supporting that use of the Commerce Clause. ''
Heart of Atlanta Motel v. United States
''Heart of Atlanta Motel, Inc. v. United States'', 379 U.S. 241 (1964), was a landmark decision of the Supreme Court of the United States holding that the Commerce Clause gave the U.S. Congress power to force private businesses to abide by Title ...
'', , ruled that Congress could regulate a business that served mostly interstate travelers. ''Daniel v. Paul'', 395 U.S. 298 (1969), ruled that the federal government could regulate a recreational facility because three of the four items sold at its snack bar were purchased from outside the state.
''United States v. Lopez''
Change in jurisprudence
Starting in 1995, the
Rehnquist Court
The Rehnquist Court was the period in the history of the Supreme Court of the United States during which William Rehnquist served as Chief Justice. Rehnquist succeeded Warren Burger as Chief Justice after the latter's retirement, and Rehnquist ...
's
revived federalism, as evident in its 5–4 decision in ''
United States v. Lopez
''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
,'' enforced strict limits to congressional power under the Commerce Clause.
In ''Lopez'', the Court struck down the
Gun-Free School Zones Act of 1990
The Gun-Free School Zones Act (GFSZA) is an act of the U.S. Congress prohibiting any unauthorized individual from knowingly possessing a loaded or unsecured firearm at a place that the individual knows, or has reasonable cause to believe, is ...
. It was the first time in almost 60 years that the Court had struck down a federal law for exceeding the limits of the Commerce Clause.
In the case, the Court was confronted with the conviction of a high school student for carrying a concealed handgun into school in violation of the act.
In striking down the federal law, the majority opinion explained:
he Gun-Free School Zones Actis a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. he act
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.
The opinion set a new rule for what was an acceptable use of congressional power under the Commerce Clause:
* Congress may regulate the use of the channels of interstate commerce;
* Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities;
* Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (activities that substantially affect interstate commerce).
Application of the ''Lopez'' rule
Channels of Commerce and the Instrumentalities of Interstate Commerce
Channels of commerce represent a broad congressional power which directly regulates the movement of goods and people across state lines.
Importantly, the Court has never required a nexus (causal link) between a state border crossing and the engagement of an activity prohibited by Congress.
In ''United States v. Sullivan'' (1948), the Court held that Section 301k of the Federal Food, Drug, and Cosmetic Act, which prohibited the misbranding of pharmaceutical drugs which had been transported in interstate commerce, did not exceed the congressional commerce power because Congress has the power to “keep the channels of such commerce free from the transportation of illicit or harmful articles.” Topics in this category include mailing or shipping in interstate commerce, prohibiting crimes where the individual crossed a state line to commit the act, and explosives.
The instrumentalities category allows Congress to make regulations in regards to "the safety, efficiency, and accessibility of the nationwide transportation and communications networks."
It is a significant basis for congressional authority however it has not been fully occupied by Congress.
Substantial Impact on Interstate Commerce
The substantial impact (or substantial affect) category relates to the power discussed in the Court's 1942 decision in ''Wickard v. Filburn''. It is arguably the strongest categorical power in the ''Lopez'' rule.
In essence, it relates to economic activities which, in the aggregate, have a substantial impact on interstate commerce.
The Court has stopped short of establishing a rule prohibiting the aggregation of all non-economic activity.
In determining whether the activity Congress is attempting to regulate has a substantial effect on interstate commerce, reviewing courts typically consider the following factors:
(1) whether the regulated activity is commercial or economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated.
Other Rehnquist Court decisions
''United States v. Morrison''
''Lopez'' was clarified by the Rehnquist Court in ''
United States v. Morrison'', . In ''Morrison,'' the Court invalidated § 40302 of the
Violence Against Women Act
The Violence Against Women Act of 1994 (VAWA) is a United States federal law (Title IV of the Violent Crime Control and Law Enforcement Act, ) signed by President Bill Clinton on September 13, 1994. The Act provided $1.6 billion toward investig ...
("VAWA"), which created civil liability for the commission of a gender-based violent crime but without any jurisdictional requirement of a connection to interstate commerce or to commercial activity. Once again, the Court stated it was presented with a congressional attempt to criminalize traditional local criminal conduct. As in ''Lopez'', it could not be argued that state regulation alone would be ineffective to protect the aggregate effects of local violence. The Court explained that in both ''Lopez'' and ''Morrison'', "the noneconomic, criminal nature of the conduct at issue was central to our decision." Furthermore, the Court pointed out that neither case had "'express jurisdictional element which might limit its reach (to those instances that) have an explicit connection with or effect on interstate commerce.'" In both cases, Congress criminalized activity that was not commercial in nature without including a jurisdictional element establishing the necessary connection between the criminalized activity and interstate commerce.
New Federalism and ''Gonzales v. Raich''
The Rehnquist Court's Commerce Clause cases helped establish the doctrine of "
New Federalism."
The Court's New Federalism doctrine was focused on reining in congressional powers in order to re-strengthen the powers of the individual states which had been weakened during the New Deal era.
Members on the Rehnquist Court theorized that by re-apportioning power back to the states, individual liberty was strengthened.
In contrast,
Erwin Chemerinsky
Erwin Chemerinsky (born May 14, 1953) is an American legal scholar known for his studies of United States constitutional law and federal civil procedure. Since 2017, Chemerinsky has been the dean of the UC Berkeley School of Law. Previously, he a ...
believes that limiting the commerce power as the Rehnquist Court did can only lead to the weakening of individual liberties.
The outer limits of the New Federalism doctrine were delineated by ''
Gonzales v. Raich
''Gonzales v. Raich'' (previously ''Ashcroft v. Raich''), 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown ca ...
'' in which Justices
Antonin Scalia
Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
and
Anthony Kennedy
Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
departed from their previous positions in the ''Lopez'' and ''Morrison'' to uphold a federal law regarding
marijuana
Cannabis, also known as marijuana among other names, is a psychoactive drug from the cannabis plant. Native to Central or South Asia, the cannabis plant has been used as a drug for both recreational and entheogenic purposes and in various tra ...
. The Court found the federal law valid although the marijuana in question had been grown and consumed within a single state and had never entered interstate commerce. The court held Congress may regulate an intrastate economic good as part of a complete scheme of legislation designed to regulate interstate commerce.
Since the Rehnquist Court, the
Tenth Amendment to the Constitution has once again played an integral part in the Court's view of the Commerce Clause. The Tenth Amendment states that the federal government has the powers specifically delegated to it by the Constitution and that other powers are reserved to the states or to the people. The Commerce Clause is an important source of those powers delegated to Congress and so its interpretation is very important in determining the scope of federal power in controlling innumerable aspects of American life. The Commerce Clause has been the most broadly-interpreted clause in the Constitution, making way for many laws that some argue, contradict the original intended meaning of the Constitution. Justice Thomas has gone so far as to state in his dissent to ''Gonzales'',
Indian affairs
The Rehnquist court upheld Congress's plenary authority to legislate in Indian affairs that was derived from ''Worcesters interpretation of the Indian Commerce Clause, but it modified ''Worcester'' by giving the states some jurisdiction over Indian affairs beyond what had been granted to them by Congress. Another view is that the Court was compelled to define limits to address congressional legislation that sought to use the Commerce Clause power in new and unprecedented ways.
The Court found in ''
Seminole Tribe v. Florida
''Seminole Tribe of Florida v. Florida'', 517 U.S. 44 (1996), was a Supreme Court of the United States, United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrog ...
'', that unlike the
Fourteenth Amendment, the Commerce Clause does not give the federal government the power to
abrogate the
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
of the states.
Themes
Rational basis review
The evolving level of scrutiny applied by federal courts to cases involving the Commerce Clause should be considered in the context of
rational basis
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
review. The idea behind rational basis review is that the judiciary must show deference to the elected representatives of the people. A respect for the democratic process requires courts to uphold legislation if there are rational facts and reasons that could support congressional judgment, even if the justices would have come to different conclusions. Throughout the 20th century, in a variety of contexts, courts sought to avoid second guessing the legislative branch, and Commerce Clause jurisprudence can be seen as a part of that trend, as
Laurence Tribe
Laurence Henry Tribe (born October 10, 1941) is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School.
A constitutional law sc ...
stated:
Since 1937, in applying the factual test in '' Jones & Laughlin'' to hold a broad range of activities sufficiently related to interstate commerce, the Supreme Court has exercised little independent judgment, choosing instead to defer to the expressed or implied findings of Congress to the effect that regulated activities have the requisite "economic effect". Such findings have been upheld whenever they could be said to rest upon some rational basis
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
. (Citing ''Heart of Atlanta Motel, Inc. v United States'' (1964).)
Justice Rehnquist echoed that point in his opinion in ''
United States v. Lopez
''United States v. Alfonso D. Lopez, Jr.'', 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power ...
'' by stating: "Since
'Wickard'' the Court has... undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce. See, e.g., ''
Hodel v. Virginia Surface Mining & Reclamation Association'', 452 U.S. 264, 276–280 (1981); ''
Perez v. United States'', 402 U.S. 146, 155–156 (1971); ''
Heart of Atlanta Motel, Inc. v. United States'', 379 U.S. 241, 252–253 (1964)."
Rational basis review begins with establishing the factual predicate upon which the exercise of congressional power is based. Thar factual basis might come from a variety of sources. It might come from factual determinations made by Congress, passed in the legislation itself, or found in the congressional reports that are issued to accompany the legislation. It might come from the record of testimony compiled in committee hearings. It might come from facts posited by proponents in their briefs in support of the legislation. For example, the Court referenced extensive testimony presented in hearings in support of the conclusion that discrimination in public accommodations reduces interstate commerce. The Court wrote:
Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.
Similarly, in ''
Gonzales v. Raich
''Gonzales v. Raich'' (previously ''Ashcroft v. Raich''), 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown ca ...
'' the Court upheld a ban on growing marijuana intended for medical use on the grounds that Congress could rationally conclude that such cultivation might make enforcement of drug laws more difficult by creating an otherwise-lawful source of marijuana that could be diverted into the illicit market:
In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.
Role of the political process
Since its decision in ''Gibbons'', the Supreme Court has held that Congress may regulate only those activities within a state that arise out of or are connected with a commercial transaction and that, viewed in the aggregate, substantially affect interstate commerce. Since judicial interpretations of constitutional limitations on Congressional exercise of its Commerce Clause powers represent an invasion of the democratic process which may not be overturned through ordinary democratic means, the Court has continued to assert that the primary limitation on the unwise exercise of Congressional Commerce Clause power by Congress must be found at the ballot box. Thus in ''
Garcia v. San Antonio Metropolitan Transit Authority
''Garcia v. San Antonio Metropolitan Transit Authority'', 469 U.S. 528 (1985), is a landmark United States Supreme Court decision in which the Court held that the Congress has the power under the Commerce Clause of the Constitution to extend the F ...
'', , the Court stated:
Of course, we continue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position. But the principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated.
Debate over applicability to Patient Protection and Affordable Care Act
Questions over the range and applicability of the Commerce Clause have arisen in debate over the constitutionality of the
Patient Protection and Affordable Care Act
The Affordable Care Act (ACA), formally known as the Patient Protection and Affordable Care Act and colloquially known as Obamacare, is a landmark U.S. federal statute enacted by the 111th United States Congress and signed into law by Presi ...
("PPACA"). The debate centers on whether Congress is authorized to require citizens to purchase health insurance from the private market, known as the ''individual mandate''. Although Congress claims authority from the Commerce Clause many opponents of the PPACA claim that the individual mandate exceeds Congress's authority, primarily on the position that the law attempts to define the nonpurchase of insurance as "commerce."
Twenty-six state attorneys general filed a lawsuit against the federal government and claimed that the insurance mandate is unconstitutional. On June 8, 2011, a panel of three judges from the
11th Circuit Court of Appeals
The United States Court of Appeals for the Eleventh Circuit (in case citations, 11th Cir.) is a federal court with appellate jurisdiction over the following U.S. district courts:
* Middle District of Alabama
* Northern District of Alabama
* ...
in Atlanta held hearings on that issue. On August 12, 2011. The 11th Circuit Court of Appeals ruled the individual mandate to be unconstitutional and stated that Congress had exceeded its authority by requiring Americans to buy coverage.
Differing court opinions have clashed over the question of whether failure to purchase insurance can be considered an economic activity that affects interstate commerce. In ''
Virginia v. Sebelius'', Judge Henry Hudson overturned the law and claimed that failure to purchase health insurance coverage could not be considered economic activity but was economic "inactivity." In ''Liberty University v. Geithner'', Judge Norman Moon upheld the law, countering:
Far from 'inactivity,' by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.
Similarly, in ''Thomas More Law Center v. Obama'', judge George Steeh ruled that such decisions have "a documented impact on interstate commerce."
In response to the Virginia decision, Virginia Attorney General
Ken Cuccinelli
Kenneth Thomas Cuccinelli II ( ; born July 30, 1968) is an American lawyer and politician who served as the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security from 2019 to 2021. A member of the Republican Party, ...
petitioned the Supreme Court to hear the appeal immediately, rather than going through the Fourth Circuit. On November 14, 2011, the Supreme Court announced that it would hear the case in the spring of 2012. The Supreme Court heard arguments on March 26–28, 2012. Its majority opinion agreed that upholding the PPACA under the commerce clause "would open a new and potentially vast domain to congressional authority" and that "the power to regulate commerce presupposes the existence of commercial activity to be regulated." The Court held that Congress did not have authority under the Commerce Clause to require citizens to purchase health insurance but still upheld the law's "individual mandate" provision under Congress's taxing authority.
See also
*
Australian commerce clause
Section 51(i) of the Australian Constitution enables the Parliament of Australia to make laws about:
:Trade and commerce with other countries, and among the States; Legislative powers of the Parliament.
The meaning of trade and commerce is clari ...
*
Dual federalism
Dual federalism, also known as layer-cake federalism or divided sovereignty, is a political arrangement in which power is divided between the federal and state governments in clearly defined terms, with state governments exercising those powers ...
*
Home Port Doctrine The Home Port Doctrine is a principle of United States law resulting from the Foreign Commerce Clause of the Constitution. It establishes that no state or local government can impose a property tax
A property tax or millage rate is an ad val ...
*
National Recovery Administration
The National Recovery Administration (NRA) was a prime agency established by U.S. president Franklin D. Roosevelt (FDR) in 1933. The goal of the administration was to eliminate "cut throat competition" by bringing industry, labor, and governmen ...
*
Section 51(i) of the Constitution of Australia
Section 51(i) of the Australian Constitution enables the Parliament of Australia to make laws about:
:Trade and commerce with other countries, and among the States; Legislative powers of the Parliament.
The meaning of trade and commerce is clari ...
*
Section 91(2) of the Constitution Act, 1867 Section 91(2) of the ''Constitution Act, 1867'', also known as the trade and commerce power, grants the Parliament of Canada the authority to legislate on:
The development of Canadian constitutional law has given this power characteristics that ...
(Canadian Constitution)
References
Further reading
Constitutional Law. Foreign Commerce Clause. Ninth Circuit Holds That Congress Can Regulate Sex Crimes Committed by U.S. Citizens Abroad. United States v. Clark, 435 F.3d 1100 (9th Cir. 2006)" ''
Harvard Law Review
The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...
''. Volume 119, No. 8, June 2006, p. 2612-2619. Available at
JSTOR
JSTOR (; short for ''Journal Storage'') is a digital library founded in 1995 in New York City. Originally containing digitized back issues of academic journals, it now encompasses books and other primary sources as well as current issues of j ...
.
*Zelinsky Edward A., ''Comparing Wayfair and Wynne: Lessons for the Future of the Dormant Commerce Clause'', Symposium: The Commerce Clause and the Global Economy, Chapman Law Review, Vol. 22, Issue 1 (Winter 2019), pp. 55–72.
External links
Clause 3. Commerce Power POWER TO REGULATE COMMERCE Capsule history of Commerce Clause casesFindLaw
*
History of How States and Nations Regulated their Commerce with each otherMadison, P.A.
{{Authority control
Legal history of the United States
Legislative branch of the United States government
Clauses of the United States Constitution