Commerce Clause
Article I, Section 8, Clause 3 of the
United States Constitution, known as the
Commerce Clause, empowers the
United States Congress "To regulate Commerce 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 as a separate power granted to Congress. It is therefore common to see references to the
Foreign Commerce Clause, the
Interstate Commerce Clause, and the
Indian Commerce Clause, each of which refers to the power granted to Congress in this section.
The use of the Commerce Clause by Congress to justify its legislative power has 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 individual states. As such, it has a direct impact on the lives of US citizens.
According to the
Tenth Amendment, the federal government of the United States has the power to regulate only matters specifically delegated to it by the Constitution. Other powers are reserved to the States, or to the people. The Commerce Clause is one of those few powers specifically delegated to the federal government and thus its interpretation is very important in determining the scope of federal legislative power.
Original understanding
The founders' understanding of the word "commerce" is unclear. Although commerce means economic activity today, it had much broader and non-economic meanings at the time. For example, in 18th century writing one finds expressions such as "the free and easy commerce of social life" and "our Lord's commerce with his disciples".
[Both these examples are taken from the Oxford English Dictionary entry on "commerce".] Further, interpreting interstate commerce to mean "interstate human interaction" makes more sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes. [
1]
Early years 1824-1935
In
Gibbons v. Ogden (
1824), Chief Justice
John Marshall ruled 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 ... [A] power to regulate navigation is as expressly granted, as if that term had been added to the word 'commerce' ... [T]he 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."
In
Swift v. United States (
1905), 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 (
1922) upheld a federal law regulating the
Chicago 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 [of commerce] flows,"
Justice Taft wrote, referring to the stockyards as "great national public utilities."
New Deal
The clause was the subject of conflict between the U.S.
Supreme Court and the Administration of
Franklin D. Roosevelt in 1935-37 when the Court struck down several of the President's "
New Deal" measures on the grounds that they encroached upon intrastate matters. After winning the
1936 election by a landslide, FDR proposed a plan to appoint an additional justice for each unretired Justice over 70. Given the age of the current justices this permitted a court population of up to 15. Roosevelt claimed that this was not to change the rulings of the Court, but to lessen the load on the older Justices, who he claimed were slowing the Court down.
There was widespread opposition to this "
court packing" plan, but in the end the New Deal did not need it to succeed. In what became known as "the switch in time that saved nine," Justice
Owen Josephus Roberts and Chief Justice
Charles Evans Hughes switched sides in
1937 and upheld the
National Labor Relations Act, which gave the
National Labor Relations Board extensive power over unions across the country.
In
1941 the Court upheld the
Fair Labor Standards Act which regulated the production of goods shipped across state lines. In
Wickard v. Filburn, (
1942) the Court upheld the
Agricultural Adjustment Act, stating that the act of growing wheat on one's own land, for one's own consumption, affected interstate commerce, and therefore under the Commerce Clause was subject to federal regulation.
Civil rights
The wide interpretation of the scope of the commerce clause continued following the passing of the
Civil Rights Act, which aimed to prevent business from discriminating against black customers. In
Heart of Atlanta Motel v. United States (
1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers; in
Katzenbach v. McClung (
1964) the Court ruled that the government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in
Daniel v. Paul (
1969), the Court ruled that the government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.
The Rehnquist Court
In 1995, Chief Justice
William H. Rehnquist delivered the opinion of the Court in
United States v. Lopez (later clarified by
United States v. Morrison). There, the Court ruled that Congress had the power to regulate only
* the channels of commerce,
* the instrumentalities of commerce, and
* action that substantially affects interstate commerce
Thus the government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools, as in the Lopez case. This was the first time in 60 years, since the conflict with
President Franklin Roosevelt in 1936-37, that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress's commerce power.
Justice Clarence Thomas, in a separate concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation.
The Court found in
Seminole Tribe v. Florida,
517 U.S. 44 (
1996) that, unlike the
Fourteenth Amendment, the Commerce Clause does not give the federal government the power to
abrogate the
sovereign immunity of the states.
Many described the Rehnquist Court's commerce clause cases as a doctrine of "new federalism". The outer limits of that doctrine were delineated by
Gonzales v. Raich (
2005), in which Justices
Scalia and
Kennedy departed from their previous positions as parts of the
Lopez and
Morrison majorities to uphold a federal law regarding
marijuana. 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.
*
Constitution in Exile*
Dormant Commerce Clause*
States' rights
* David Morris,
AlterNet,
June 15, 2005,
The Sainted Clause*
Capsule history of Commerce Clause cases
