Eleanor Finch
The Commerce Clause, which grants Congress the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, is the primary way in which international trade is discussed in the US Constitution. The Commerce Clause emerged as a response to the absence of any federal commerce power under the Articles of Confederation, which made it difficult to achieve uniformity in trade relations with foreign countries as states acted in their own interests. The interpretation of the Commerce Clause and the extent of its powers have been the subject of long and intense political controversy, with some arguing for a broad interpretation of commerce and others for a narrower one. The Supreme Court has generally taken a broad interpretation, holding that Congress has the authority to regulate local commerce as long as it can be part of a continuous current of interstate commerce.
| Characteristics | Values |
|---|---|
| What is the Commerce Clause? | A provision of the U.S. Constitution that authorizes Congress to regulate commerce with foreign nations, among several states, and with Indian tribes. |
| What does it do? | It grants Congress broad power to regulate interstate commerce and restricts states from impairing interstate commerce. |
| What is its history? | In 1787, political dissatisfaction with the economic situation led to a convention in Philadelphia. The new Constitution addressed debtor relief laws and interstate trade barriers, and it included the Commerce Clause, which moved the power to regulate interstate commerce to Congress. |
| What is its impact? | The Commerce Clause is one of the most fundamental powers delegated to Congress by the founders. It has been used to abolish the slave trade, open foreign markets to American-made goods, and regulate local commerce. |
| What is the dispute? | The Constitution does not explicitly define "commerce", leading to debate over what powers the Commerce Clause grants Congress. Some argue it refers to trade or exchange, while others claim it describes commercial and social intercourse between citizens of different states. |
| What is the Dormant Commerce Clause? | The Dormant Commerce Clause is an interpretation of the Commerce Clause that prohibits state laws and regulations that interfere with or discriminate against interstate commerce. |
| What is the Tonnage Clause? | The Tonnage Clause prevents states from imposing taxes based on the tonnage (internal capacity) of a vessel, which is an indirect method of taxing imports and exports. |
| What is the Import-Export Clause? | The Import-Export Clause was adopted by the Constitutional Convention to prevent states from imposing tariffs and regulations that conflicted with Congress' efforts to regulate trade with foreign nations. |
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What You'll Learn
The Commerce Clause
The Constitution does not explicitly define the word "commerce", leading to a wide debate over what powers are granted to Congress by the Commerce Clause. Some argue that it refers simply to trade or exchange, while others claim that the framers intended to describe commercial and social intercourse between citizens of different states more broadly. Courts have generally taken a broad interpretation of the commerce clause for much of US history.
In Gibbons v. Ogden (1824), Chief Justice John Marshall ruled that the power to regulate interstate commerce included the power to regulate interstate navigation. He stated that "commerce is undoubtedly traffic, but it is something more—it is intercourse". This decision supported the idea that the electoral process of representative government represents the primary limitation on the exercise of the Commerce Clause powers.
In the 1930s, the Supreme Court increasingly heard cases on Congress's power to regulate commerce, and its interpretation of the Commerce Clause evolved significantly. The Court began to recognise broader grounds upon which the Commerce Clause could be used to regulate state activity, holding that activity was commerce if it had a "substantial economic effect" on interstate commerce.
In United States v. Lopez (1995), the Supreme Court attempted to curtail Congress's broad legislative mandate under the Commerce Clause by returning to a more conservative interpretation of the clause. The defendant in this case argued that the federal government had no authority to regulate firearms in local schools, while the government claimed that this fell under the Commerce Clause as the possession of firearms in a school zone would affect general economic conditions. The Supreme Court rejected the government's argument, holding that Congress only 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
The Commerce Clause, which grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes", is the primary mention of interstate commerce in the US Constitution. The Commerce Clause emerged as a response to the absence of federal commerce power under the Articles of Confederation, which led to states enacting trade barriers and making it difficult to negotiate trade agreements with foreign powers.
The interpretation of the Commerce Clause has been a subject of long and intense political controversy. The Constitution does not explicitly define the word "commerce", leading to differing views on what powers it grants Congress. Some argue that it refers simply to trade or exchange, while others claim that it describes a broader concept of commercial and social intercourse between citizens of different states. The Supreme Court has generally taken a broad interpretation of the clause, holding that intrastate activity can be regulated under the Commerce Clause if it is part of a larger interstate commercial scheme. This interpretation has been used to justify federal regulation in areas such as firearms possession, which can affect general economic conditions and interstate commerce.
The Commerce Clause has been used to abolish the slave trade with other nations, with the power to do so being effective from the earliest date allowed by the Constitution, January 1, 1808. It has also been used to address discriminatory state legislation and to enable the creation of a free trade zone among the states. The outer limits of the Interstate Commerce Clause power are still debated, with some arguing that a broad interpretation of "commerce" was never intended by the Founding Fathers.
In summary, the Commerce Clause is the main provision in the US Constitution that relates to interstate commerce, and it has been interpreted to grant Congress broad powers to regulate commerce both domestically and with foreign nations. The interpretation and application of this clause have been a subject of significant debate and continue to shape the balance of power between the states and the federal government.
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International commerce power
The Commerce Clause, which grants Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes", is the primary source of international commerce power in the US Constitution. The exact wording of the Commerce Clause, as per Article I, Section 8, is as follows: " [The Congress shall have Power...] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
The Commerce Clause emerged as a response to the absence of any federal commerce power under the Articles of Confederation. The Articles of Confederation allowed states to impose tariffs and regulations that conflicted with Congress' efforts to regulate trade with foreign nations. This led to commercial strife between the states and made it difficult to achieve uniformity in trade relations with foreign countries. The Commerce Clause was intended to address these issues by granting Congress the power to regulate interstate commerce and restrict states from impairing it.
The interpretation of the term "commerce" in the Commerce Clause has been a subject of debate, with some arguing that it refers simply to trade or exchange, while others claim that it describes a broader concept of commercial and social intercourse between citizens of different states. The Supreme Court has generally taken a broad interpretation of the Commerce Clause, holding that Congress has the authority to regulate local commerce as long as it is part of a larger interstate commercial scheme. This interpretation has been used to justify the regulation of activities that substantially affect interstate commerce, such as the federal Gun Free School Zones Act of 1990.
The international commerce power granted by the Commerce Clause has had significant implications for US trade policy. It allowed Congress to abolish the slave trade with other nations, effective on January 1, 1808, the earliest date permitted by the Constitution. It also enabled the creation of a free trade zone among the states and gave the president the power to negotiate, and Congress to approve, treaties to open foreign markets to American-made goods.
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Congress's regulatory power
The US Constitution designates Congress as the primary authority on trade policy, with the power to regulate international trade discussed in Article 1, Section 8. This section expressly grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". This is known as the Commerce Clause.
The Commerce Clause emerged as a response to the absence of any federal commerce power under the Articles of Confederation. It was also a response to the problems of interstate trade barriers and the need to enable the creation of a free trade zone among the several states. Removing the power to regulate international trade from the states allowed the president to negotiate, and Congress to approve, treaties to open foreign markets to American-made goods.
The Commerce Clause has been interpreted broadly by the courts, with the power to regulate commerce being interpreted as the power to make regular, but also to ban the trade of certain items, as in the case of the slave trade. The Supreme Court has held that Congress has the authority to regulate local commerce, as long as that activity could become part of a continuous "current" of commerce that involves the interstate movement of goods and services.
Congress has enacted a number of trade laws that delegate a range of powers to the President, such as the power to investigate and take action on imported goods for national security purposes, and to address unfair trade practices. Congress also sets trade negotiating objectives in law, requires formal notification and consultation from the executive branch, and conducts oversight hearings on trade programs and agreements to assess their conformity to US law and congressional intent.
The modern growth of Congress's regulatory powers has been allowed by the courts adopting an expansive reading of the Necessary and Proper Clause to give Congress power over a broad range of intrastate economic activities with a "substantial effect" on interstate commerce.
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The Import-Export Clause
> "No State shall … lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws."
The inclusion of this clause in the Constitution was influenced by the recognition that imports and exports were significant revenue sources. Delegates like Alexander Hamilton supported the government's ability to tax both imports and exports. However, southern delegates expressed concerns that export taxation could negatively impact their region, known as the "staple states," from which most exports originated at the time. They also worried that taxing agricultural exports could be used to indirectly attack slavery, making products like cotton more expensive and less attractive.
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Frequently asked questions
The Commerce Clause is a provision in the US Constitution that grants Congress the power to regulate commerce with foreign nations and among the states.
The Commerce Clause gives Congress the power to regulate commerce with foreign nations, which includes the ability to negotiate treaties to open foreign markets to American-made goods.
The Commerce Clause gave Congress the power to abolish the slave trade with other nations, which it did on January 1, 1808, the earliest date allowed by the Constitution.
The Import-Export Clause prohibits the federal government from imposing taxes or duties on exports. It also prevents states from imposing taxes based on the tonnage (internal capacity) of a vessel, which is an indirect method of taxing imports and exports.
The Commerce Clause has been interpreted as a grant of power to Congress and as an implied prohibition on state laws that interfere with or discriminate against interstate commerce. This has led to disagreements about how to determine the balance of power between the states and the federal government.
