Eleanor Finch
The Commerce Clause, an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3), grants Congress the power to regulate commerce with foreign nations, among several states, and with Indian tribes. The clause was included in the Constitution in 1787 to address interstate trade barriers and the ability to enter into trade agreements. The meaning of commerce and to regulate has been disputed, with some arguing for a limited interpretation and others for a broader one. The Supreme Court has played a significant role in interpreting the clause, with cases such as NLRB v. Jones & Laughlin Steel Corp in 1937, United States v. Lopez in 1995, and Gonzales v. Raich shaping the understanding of Congress's power to regulate commerce.
| Characteristics | Values |
|---|---|
| What is the Commerce Clause? | An enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3) |
| What does the Commerce Clause state? | That the United States Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" |
| What is the meaning of "among the several states"? | Refers to commerce between one state and others, not within a state |
| What is the meaning of "commerce"? | The activity of selling, trading, exchanging, and transporting goods and people, as distinct from producing the things being moved |
| What is the meaning of "to regulate"? | To make regular, but with respect to international trade, it also includes the power to ban the trade in some items |
| What is the Commerce Clause's historical context? | In 1787, political dissatisfaction with the economic situation led to a convention in Philadelphia, which proposed a new Constitution that addressed debtor relief laws and interstate trade barriers |
| What is the impact of the Commerce Clause? | It grants Congress plenary and complete power over interstate commerce, removing state interferences with trade and enabling the creation of a free trade zone among the states |
| What is the Commerce Clause paired with? | The Necessary and Proper Clause, which allows for a broader interpretation of Congressional powers |
| What is the role of the courts? | Courts have generally deferred to Congress on the interpretation of the Commerce Clause, recognising broader grounds for its use to regulate state activity, especially if it has a "substantial economic effect" on interstate commerce |
| What are some examples of its use? | NLRB v. Jones & Laughlin Steel Corp, United States v. Darby, Wickard v. Filburn, Gonzales v. Raich, United States v. Lopez, and Sebelius (regarding the Affordable Care Act) |
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What You'll Learn
The Commerce Clause
The interpretation of the Commerce Clause has been a subject of long and intense political controversy, with courts and commentators discussing each of the three areas of commerce as separate powers granted to Congress. The Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause each have distinct implications for the balance of power between the federal government and the states, as well as between the elected branches of the federal government and the judiciary.
The meaning of "commerce" has been debated, with some arguing it refers simply to trade or exchange, while others claim it describes commercial and social intercourse between citizens of different states. The Supreme Court has generally taken a broad interpretation, holding that intrastate activity could be regulated under the Commerce Clause if it is part of a larger interstate commercial scheme.
The interpretation of "to regulate" is also contested. It may be limited to "make regular", excluding any prohibition on trade, or it could be interpreted more broadly to mean "to govern", which would include prohibitions. The Supreme Court has held that Congress has the power to regulate the channels of commerce, the instrumentalities of commerce, and actions that substantially affect interstate commerce.
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Interstate Commerce Clause
The Commerce Clause, outlined in Article I, Section 8, Clause 3 of the United States Constitution, grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". This clause is often referred to as the Interstate Commerce Clause when referring to the power it grants Congress to regulate commerce among the states.
The meaning of "among the several states" and "to regulate" has been the subject of debate. Some claim that at the time of the founding, these terms had a broad and expansive meaning, while others argue for a more limited interpretation. "Commerce" may be limited to the trade, exchange, or transportation of people and goods, excluding activities such as agriculture, manufacturing, and production. "To regulate" may be interpreted narrowly as "to make regular", excluding any prohibition on trade, or more broadly as "to govern", which includes the power to prohibit.
The interpretation and application of the Interstate Commerce Clause have evolved over time. During the Marshall Court era (1801-1835), the Supreme Court interpreted the clause broadly, giving Congress jurisdiction over various aspects of intrastate and interstate commerce. In Gibbons v. Ogden (1824), Chief Justice John Marshall ruled that the power to regulate interstate commerce included the authority to regulate interstate navigation, stating that the power "would be a very useless power if it could not pass [state] lines."
In the late 19th century, Congress began to more actively use the Commerce Clause to address national issues involving commerce across state lines, particularly in response to rapid industrial development and an increasingly interdependent national economy. The enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890 marked a significant expansion of federal regulatory power under the Commerce Clause.
The Supreme Court's interpretation of the Interstate Commerce Clause narrowed during the Lochner era (1905-1937), with the Court experimenting with the idea that the clause did not empower Congress to pass laws impeding an individual's right to enter into business contracts. However, starting in 1937 with NLRB v. Jones & Laughlin Steel Corp, the Court once again broadened its interpretation, holding that Congress had the power to regulate activities with a "substantial economic effect" on interstate commerce or if the "cumulative effect" of an activity could impact such commerce.
In more recent years, the Supreme Court has attempted to curtail Congress's broad legislative mandate under the Interstate Commerce Clause by returning to a more conservative interpretation in cases such as United States v. Lopez (1995) and Sebelius (regarding the Affordable Care Act). The Court has emphasised that Congress can only regulate the channels of commerce, the instrumentalities of commerce, and actions that substantially affect interstate commerce, declining to further expand the scope of the Interstate Commerce Clause.
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Foreign Commerce Clause
The Foreign Commerce Clause, also known as the Commerce Clause, is outlined in Article 1, Section 8, Clause 3 of the United States Constitution. It grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
The Commerce Clause was included in the Constitution in 1787 to address the problems of interstate trade barriers and the ability to enter into trade agreements. It moved the power to regulate interstate commerce to Congress, enabling the creation of a free trade zone among the states. This clause also removed the power to regulate international trade from the states, giving the president the ability to negotiate, and Congress to approve, treaties to open foreign markets to American-made goods.
The term "commerce" has been interpreted differently over time. Some argue that it refers simply to the trade, exchange, or transportation of people and goods, excluding activities such as agriculture, manufacturing, and other methods of production. Others claim that it describes any gainful activity or even all social interaction. The interpretation of "commerce" is significant because it defines the scope of Congress's power under the Foreign Commerce Clause.
The Foreign Commerce Clause has been invoked in several court cases to determine the extent of Congress's power to regulate commerce. For example, in Gibbons v. Ogden in 1824, the Supreme Court held that intrastate activity could be regulated under the Commerce Clause if it was part of a larger interstate commercial scheme. In 1937, the Court further expanded its interpretation of the Clause, holding that any activity with a "substantial economic effect" on interstate commerce could be regulated.
The Foreign Commerce Clause has been a source of ongoing controversy regarding the balance of power between the federal government and the states. While it grants Congress significant power over commerce, the specific limitations of this power continue to be debated and defined through political and judicial processes.
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Indian Commerce Clause
The Indian Commerce Clause is one of the three areas of commerce described by the Commerce Clause in the United States Constitution (Article I, Section 8, Clause 3). The Indian Commerce Clause grants Congress the authority to "regulate commerce... with the Indian tribes".
The Indian Commerce Clause has been interpreted in various ways. Initially, it was rarely invoked by Congress, with scholars arguing that the Founding Fathers did not intend for a broad interpretation of the word "commerce". However, over time, the Supreme Court has increasingly recognised broader grounds for the Indian Commerce Clause to be used to regulate state activity.
The Indian Commerce Clause has been cited as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. It has been used to justify the federal government's power over states and tribes, with the Court opining that "the Indian Commerce Clause makes 'Indian relations... the exclusive province of federal law'".
However, there is ongoing debate about the extent of federal power over Indian tribes. Some scholars argue that the Indian Commerce Clause does not grant the federal government unbridled power to regulate tribes' internal affairs, while others assert that it supports a narrower scope for federal power and a broader role for the states.
The Indian Commerce Clause has been a source of confusion regarding the source of federal authority over Indian matters. While it is now generally recognised that the power to regulate commerce with Indian tribes is one basis for federal authority, other constitutional provisions and historical sources have also been cited as alternate sources of federal power.
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The Necessary and Proper Clause
The landmark Supreme Court case McCulloch v. Maryland (1819) is central to the interpretation of the Necessary and Proper Clause. In this case, the Court ruled that Congress has the implied power to establish a bank, as it is a suitable instrument to aid in Congress's enumerated power to tax and spend. This decision set a precedent for a broad interpretation of the Necessary and Proper Clause, with the Court siding with Alexander Hamilton's view that the clause allows Congress to determine what is "necessary" for implementing federal powers.
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Frequently asked questions
The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). It states that the United States Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
"To regulate" can be interpreted as to make regular, meaning that a particular type of commerce is subject to a rule. However, it can also be interpreted more broadly as to govern, which would include the power to prohibit certain types of commerce.
In 1787, a convention was convened in Philadelphia to address political dissatisfaction with the economic situation. The new Constitution proposed by the convention included the Commerce Clause to address the problems of interstate trade barriers and the ability to enter into trade agreements.
The interpretation of the Commerce Clause has evolved over time. Initially, the Court recognized broader grounds upon which the Commerce Clause could be used to regulate state activity, including any activity with a "substantial economic effect" on interstate commerce. However, in cases such as United States v. Lopez (1995), the Supreme Court attempted to curtail Congress's broad legislative mandate under the Commerce Clause by adopting a more conservative interpretation.
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