Commerce Clause

Commerce Clause

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The Commerce Clause is an enumerated power
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...

 listed in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 (Article I, Section 8, Clause 3). The clause states that the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 shall have power "To regulate Commerce
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...

 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 Commerce Clause referred to as "the Foreign Commerce Clause", "the Interstate Commerce Clause, and "the Indian Commerce Clause", each of which refers to a different application of the same sentence in the Constitution.

Dispute exists within the courts as to the range of powers granted to Congress by the Commerce Clause. As noted below, the clause is often paired with the Necessary and Proper Clause, the combination used to take a broad, expansive perspective of these powers. Many strict constructionists
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...

 deny that this is the proper application of the Commerce Clause because it refers specifically to "the foregoing Powers
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...

".

Text and pairing


Article I, Section 8, Clause 3:

The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states this Commerce Clause power, and all of the other enumerated powers, may be implemented by the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The Necessary and Proper Clause is the final clause of Article I, section 8. However, the Constitution is clearer about the role of the Congress vis-a-vis interstate commerce in Article I, Section 9, Clauses 1, 5 and 6, though the interpretation of Section 8 and Section 9 could depend on the circumstances presented by specific cases.

Significance


The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...

, :
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 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 the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 citizens.

Significance – federal rights in navigable waters


The commerce clause provides comprehensive powers to the United States over navigable waters. These powers are critical to understanding the rights of landowners adjoining or exercising what would otherwise be riparian rights
Riparian water rights
Riparian water rights are system for allocating water among those who possess land about its source. It has its origins in English common law...

 under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

. The Commerce Clause confers a unique position upon the 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
Navigable servitude
Navigable servitude is a United States constitutional doctrine that gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause of Article I, Section 8 of the constitution. It is also sometimes called federal navigational servitude.The Commerce...

, 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
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

 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 and Daniel E. Troy, argue that prior to 1887, the Commerce Clause was rarely invoked by Congress, and thus a broad interpretation of the word "commerce" was clearly never intended by the Founders. In support of this claim, they argue that the word "commerce", as used in the Constitutional Convention
Philadelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...

 and the Federalist Papers
Federalist Papers
The Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...

, can be substituted with either "trade" or "exchange" interchangeably while preserving the meaning of the statements. They also point to Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...

'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
Samuel Johnson , often referred to as Dr. Johnson, was an English author who made lasting contributions to English literature as a poet, essayist, moralist, literary critic, biographer, editor and lexicographer...

's A Dictionary of the English Language
A Dictionary of the English Language
Published on 15 April 1755 and written by Samuel Johnson, A Dictionary of the English Language, sometimes published as Johnson's Dictionary, is among the most influential dictionaries in the history of the English language....

defines the noun "commerce" narrowly as "[e]xchange of one thing for another; interchange of any thing; trade; traffick", but it defines the corresponding verb "to commerce" more broadly as "[t]o hold intercourse." The word "intercourse" also had a different and wider meaning back in 1792 than it does now.

Early years (1800s–1930s)


Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...

 ruled in Gibbons v. Ogden
Gibbons v. Ogden
Gibbons v. Ogden, 22 U.S. 1 , was a landmark decision in which the Supreme Court of the United States held that the power to regulate interstate commerce was granted to Congress by the Commerce Clause of the United States Constitution. The case was argued by some of America's most admired and...

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
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

. 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's attempt to grant a steamboat monopoly to Robert Fulton
Robert Fulton
Robert Fulton was an American engineer and inventor who is widely credited with developing the first commercially successful steamboat...

, which he had then ultimately franchised to Ogden. Ogden claimed river traffic was not "commerce" under the Commerce Clause and further 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 New York could control river traffic within New York all the way to the border with New Jersey, 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
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 line.

Thus, Ogden contended, Congress could not invalidate his monopoly as long as he only transported passengers 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: 1. Commerce is "intercourse, all its branches, and is regulated by prescribing rules for carrying on that intercourse." 2. Commerce among the states cannot stop at the external boundary-line of each state, but may be introduced into the interior... Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more states than one." 3. The Commerce power is the power to regulate, that is "to prescribe the rule by which commerce is to be governed" which "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
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...

, , the Supreme Court addressed whether the Cherokee nation is a foreign state in the sense in which that term is used in the constitution. The Court provided a definition of Indian tribe that clearly made the rights of tribes far inferior to those of foreign states. In part the court said:


"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. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...

, , "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 "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
Dormant Commerce Clause
The "Dormant" Commerce Clause, also known as the "Negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution...

 decisions influenced its approach to Congressional regulation.

In this context, the Court took a formalistic approach, which distinguished between 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 of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

 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
Kidd v. Pearson
Kidd v. Pearson, 128 U.S. 1 , was a case in which the Supreme Court of the United States held that a distinction between manufacturing and commerce meant that an Iowa law which prohibited the manufacture of alcohol was not unconstitutional in that it did not conflict with the power of the US...

, , 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, , 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 (the Packers and Stockyards Act
Packers and Stockyards Act
The Packers and Stockyards Act of 1921 was enacted following the release in 1919 of the Report of the Federal Trade Commission on the meatpacking industry.-History and passage:...

) 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," Chief Justice Taft
William Howard Taft
William Howard Taft was the 27th President of the United States and later the tenth Chief Justice of the United States...

 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. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...

), "Though that [formalistic] approach 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."

The Court would also examine the purpose behind the creation of the law, and would invalidate otherwise valid federal regulations if the purpose was to have an effect on something which was outside of the scope of the Commerce Clause.

New Deal



In 1936, Roosevelt and Congress were implementing New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

 policies and the Supreme Court, in Carter v. Carter Coal Company, struck down a key element of the New Deal's regulation of the mining industry, on the grounds that mining was not "commerce". After the Presidential and Congressional elections of 1936, Roosevelt began an assault on what he regarded as the Court's anti-democratic decisions. (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 element of the New Deal legislation that had come before it.) After winning the United States presidential election, 1936
United States presidential election, 1936
The United States presidential election of 1936 was the most lopsided presidential election in the history of the United States in terms of electoral votes. In terms of the popular vote, it was the third biggest victory since the election of 1820, which was not seriously contested.The election took...

, Roosevelt proposed a plan to appoint an additional Justice for each sitting Justice over age 70. Given the age of the current Justices, this allowed a Supreme Court size of up to 15 Justices. Roosevelt claimed that this was not to change the rulings of the Court, but to lessen the load on the older Justices, who he said were slowing the Court down.

There was widespread opposition to this court packing plan and in the end Roosevelt abandoned it. In what became known as "the switch in time that saved nine
The switch in time that saved nine
“The switch in time that saved nine” is the name given to what was perceived as the sudden jurisprudential shift by Associate Justice Owen J. Roberts of the U.S. Supreme Court in West Coast Hotel Co. v. Parrish...

", Justice Owen Josephus Roberts
Owen Josephus Roberts
Owen Josephus Roberts was an Associate Justice of the United States Supreme Court for fifteen years. He also led the fact-finding commission that investigated the attack on Pearl Harbor. At the time of World War II, he was the only Republican appointed Judge on the Supreme Court of the United...

 and Chief Justice Charles Evans Hughes
Charles Evans Hughes
Charles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...

 switched sides in 1937 and, in National Labor Relations Board v. Jones & Laughlin Steel Corporation
National Labor Relations Board v. Jones & Laughlin Steel Corporation
National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 , was a United States Supreme Court case that declared that the National Labor Relations Act of 1935 was constitutional...

, , upheld the National Labor Relations Act
National Labor Relations Act
The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...

, which gave the National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...

 extensive power over labor relations across the United States.

The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated in Gibbons. Central to this theory was the belief that the democratic process was sufficient to confine the legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is. The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. The debate over Commerce Clause jurisprudence thus includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the Federal courts.

When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. Intrastate activities could fall within the scope of the Commerce Clause, if those activities would have any rational effect on Interstate Commerce. Finally, in United States v. Darby Lumber Co.
United States v. Darby Lumber Co.
United States v. Darby Lumber Co., 312 U.S. 100 , 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 employment conditions. The unanimous decision of the Court in this...

, , the Court said the 10th Amendment "is but a truism" and was not considered to be an independent limitation on Congressional power. 312 U.S. 100 at 124.

In 1941 the Court upheld the Fair Labor Standards Act
Fair Labor Standards Act
The Fair Labor Standards Act of 1938 is a federal statute of the United States. The FLSA established a national minimum wage, guaranteed 'time-and-a-half' for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor," a term that is defined in the statute...

 which regulated the production of goods shipped across state lines. In 1942, in Wickard v. Filburn
Wickard v. Filburn
Wickard v. Filburn, 317 U.S. 111 , was a U.S. Supreme Court decision that recognized the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S...

, the Court upheld the Agricultural Adjustment Act of 1938
Agricultural Adjustment Act of 1938
The Agricultural Adjustment Act of 1938 was legislation in the United States that was enacted as an alternative and replacement for the farm subsidy policies, in previous New Deal farm legislation , that had been found unconstitutional...

, which sought to stabilize wide fluctuations in the market price for wheat by stabilizing supply through quotas. The Court's decision rejected former decisions that seemed to focus on "Whether the subject of the regulation in question was production, consumption, or marketing. Those formalistic characterizations were

not material for purposes of deciding the question of federal power before us. That an activity: is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'


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 was sufficiently large as to impact the overall goal of stabilizing prices.

This change in the Court's decisions is often referred to as the Constitutional Revolution of 1937, in which the Court shifted from engaging in judicial activism to protect property rights, to a paradigm which focused most strongly on protecting civil liberties. It did so by destroying the civil liberty to grow whatever crops one chose on ones own land for personal use. Some commentators view the Court's decision in United States v. Lopez
United States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...

(1995), as an important swing in the pendulum away from an expansive view of Congressional power.

Civil rights


The wide interpretation of the scope of the Commerce Clause continued following the passing of the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...

, which aimed to prevent business from discriminating against black customers. The United States Supreme Court issued several opinions which supported this use of the Commerce Clause. Heart of Atlanta Motel v. United States
Heart of Atlanta Motel v. United States
Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 , was a landmark United States Supreme Court case holding that the U.S. Congress could use the Constitution's Commerce Clause power to force private businesses to abide by the Civil Rights Act of 1964.- Background :This important case...

, , 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 out of the four items sold at its snack bar were purchased from outside the state.

Use against sex offenders


The Commerce Clause has been used to support the registration requirement under the Sex Offender Registration and Notification Act (SORNA), requiring sex offenders to undergo sex offender registration
Sex offender registration
Sex offender registration is a system in various states designed to allow government authorities to keep track of the residence and activities of sex offenders, including those who have completed their criminal sentences. In some jurisdictions , information in the registry is made available to the...

 when moving states, even if their new state of residence has not implemented the statute. There is currently a circuit split
Circuit split
In the context of United States federal courts, a circuit split exists when two or more circuits in the United States court of appeals system have different interpretations of federal law....

 on this issue, and the Supreme Court has agreed to adjudicate it in 2010.

The Rehnquist Court


The Rehnquist Court's Commerce Clause jurisprudence restored limits to the Interstate Commerce Clause that were removed in post-New Deal decisions, based primarily on concerns of federalism and Congress encroaching on the Several States' Police Powers. It upheld Congress's plenary authority to legislate in Indian affairs that was derived from the Worcester decision's interpretation of the Indian Commerce Clause, but modified Worcester by giving the several 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 which sought to use the Interstate Commerce Clause power in new and unprecedented ways. In United States v. Lopez
United States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...

, the Court confronted conviction of a 12th Grade student for carrying a concealed handgun into school in violation of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). The Gun-Free School Zones Act made it a federal offense for any individual knowingly to possess a firearm at a place that individual knows or has reasonable cause to believe is a school zone. The legislation posed several challenging problems for Commerce Clause jurisprudence. Education is a traditionally local government activity, and while education undoubtedly has an economic aspect, the nexus between regulating gun violence and the Commerce Clause power to regulate interstate commerce seems particularly strained. In Wickard v. Filburn
Wickard v. Filburn
Wickard v. Filburn, 317 U.S. 111 , was a U.S. Supreme Court decision that recognized the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S...

, the Court ruled Congress was exercising its Commerce Clause power to regulate local economic activity in ways that the States were powerless to regulate, because only the federal government could effectively control the national wheat supply. The Court reasoned that if Wickard could be applied to acts of gun violence, simply because crime negatively impacted education, Congress might conclude that crime in schools substantially affects commerce, and may be regulated. Under this logic, all police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...

 could be nationalized and local police and criminal courts eliminated on the theory that all crime has an impact on commerce.

As the majority explained:

Section 922(q) is 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. Section 922(q) 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 pointed out that prior decisions had identified three broad categories of activity that Congress may regulate under its commerce power.
  • First, Congress may regulate the use of the channels of interstate commerce;
  • Second, 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;
  • Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).


Thus the federal government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools, as in Lopez. This was the first time in sixty years, since the conflict with President 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
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....

, 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 entire nation.

The Lopez decision was clarified in United States v. Morrison
United States v. Morrison
United States v. Morrison, is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.-...

, , in which the Supreme Court invalidated § 40302 of the Violence Against Women Act
Violence Against Women Act
The Violence Against Women Act of 1994 is a United States federal law. It was passed as Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, , and signed as by President Bill Clinton on September 13, 1994...

 ("VAWA"). The VAWA created civil liability for the commission of a gender-based violent crime, but without any jurisdictional requirement of a connection to Interstate Commerce or commercial activity. 42 U.S.C. § 13981(c). Once again, the Court 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 impacts 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 in neither case was there an " 'express jurisdictional element which might limit its reach (to those instances that) have an explicit connection with or effect on interstate commerce.' " Id. at 1751. 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.

The Court found in Seminole Tribe v. Florida
Seminole Tribe v. Florida
Seminole Tribe of Florida v. Florida, 517 U.S. 44 , was a 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 abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment...

, that, unlike the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

, the Commerce Clause does not give the federal government the power to abrogate
Abrogation doctrine
The Abrogation doctrine is a constitutional law doctrine expounding when and how the Congress may waive a state's sovereign immunity and subject it to lawsuits to which the state has not consented ....

 the sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....

 of the states.

Many described the Rehnquist Court's Commerce Clause cases as a doctrine of "New Federalism
New Federalism
New Federalism is a political philosophy of devolution, or the transfer of certain powers from the United States federal government back to the states...

". The outer limits of that doctrine were delineated by Gonzales v. Raich
Gonzales v. Raich
Gonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...

, in which Justices Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

 and Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...

 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. The court held Congress may regulate a non-economic good, which is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce.

The Tenth Amendment to the Constitution
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

  has in the last two decades played a part in the Court's view of the Commerce Clause. The Tenth Amendment states that the federal government has only the powers specifically delegated to it by the Constitution. 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 therefore its interpretation is very important in determining the scope of federal power in controlling innumerable aspects of American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 life. The Commerce Clause has been the most widely interpreted clause in the Constitution, making way for many laws which, some argue, contradict the original intended meaning of the Constitution. Justice Clarence Thomas has gone so far as to state in his dissent to Gonzales,

Rational basis review


The evolving level of scrutiny applied by Federal courts to Commerce Clause cases should be considered in the context of rational basis 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 that the Courts uphold legislation if there are rational facts and reasons that could support Congressional judgment, even if the Justices would 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 this trend. Lawrence Tribe states:



Since 1937, in applying the factual test 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. (Citing Heart of Atlanta Motel, Inc. v United States (1964).)



Justice Rehnquist echoed this point in his opinion in United States v. Lopez
United States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...

, 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 Assn., Inc., 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
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...

  begins with establishing the factual predicate upon which the exercise of Congressional power is based. This 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 issued to accompany the legislation. It might come from the record of testimony complied 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 has a deleterious impact on 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, the Court upheld a ban on the growth of marijuana intended for medical use on the grounds that Congress could rationally conclude that this growth 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. Gonzales v. Raich

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
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 , is a United States Supreme Court decision that holds that the Congress has the power under the Commerce Clause of the Constitution to extend the Fair Labor Standards Act, which requires that employers provide minimum wage and...

, , 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.

Contemporary Commerce Clause debate


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
Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act is a United States federal statute signed into law by President Barack Obama on March 23, 2010. The law is the principal health care reform legislation of the 111th United States Congress...

. The debate centers around whether there exists constitutional justification for a portion of the law known as the the "Individual Mandate
Individual mandate
An individual mandate is a requirement by a government that certain individual citizens purchase or otherwise obtain a good or service.In the United States, the United States Congress has enacted two individual mandates, the first was never federally enforced, while the second is not scheduled to...

", which requires citizens to purchase insurance by 2014 or face a tax penalty. Justification for the mandate is claimed to lie in the commerce clause, but many opponents of the ACA have claimed that the Individual Mandate steps outside the reach of the clause.

Twenty-six state attorneys general have filed a lawsuit against the federal government claiming the Individual Mandate oversteps the bounds of the commerce clause. On June 8, 2011, a panel of three judges from the 11th Circuit Court of Appeals in Atlanta held hearings on the issue. On August 12, 2011. The 11th Circuit Court of Appeals ruled the Individual Mandate portion unconstitutional, stating 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
Commonwealth of Virginia v. Sebelius
Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius is a court case in which Virginia attorney general Ken Cuccinelli sued Secretary of Health and Human Services Kathleen Sebelius over the implementation of the Patient Protection and Affordable Care Act...

, Judge Henry Hudson overturned the law, claiming that failure to purchase health insurance coverage could not be considered economic activity, being rather economic "inactivity." In Liberty University v. Geithner, Judge Norman Moon upheld the law, countering that:
"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
Ken Cuccinelli
Kenneth Thomas 'Ken' Cuccinelli II is a U.S. politician and the Attorney General of Virginia. From 2002 until January 16, 2010 he was a Republican member of the Senate of Virginia, representing the 37th district in Fairfax County...

 petitioned the Supreme Court to hear the appeal immediately, rather than going through the Fourth Circuit. On November 14, 2011, the Supreme Court announced it would hear the case in the spring of 2012, with a decision to be made by the summer of 2012. This decision would come only months before the 2012 Presidential Election
United States presidential election, 2012
The United States presidential election of 2012 is the next United States presidential election, to be held on Tuesday, November 6, 2012. It will be the 57th quadrennial presidential election in which presidential electors, who will actually elect the President and the Vice President of the United...

, timing which is considered highly significant as the ACA is viewed as one of the incumbent administration's major actions.

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