The Commerce Clause is a very short phrase, but it's one of the most powerful and controversial clauses in the Constitution. The Commerce Clause has been used to give Congress power over anything from business and economic activity to civil rights. However, it doesn't give Congress unlimited power - there are some important Supreme Court cases that struck down laws related to gun control and the individual mandate in the Affordable Care Act. In this article, we'll look at the text of the Commerce Clause, the historical context and debates that happened at the Constitutional Convention, and what it means for the government today!
Commerce Clause Definition
The Commerce Clause can be found in Article I, Section 8, Clause 3 of the Constitution:
[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Commerce Clause Purpose
The Commerce Clause didn't just randomly appear in the Constitution - the Commerce Clause's purpose was to address the debates and issues which occurred after the United States became a country.
Problems with the Articles of Confederation
The Commerce Clause was created at the Constitutional Convention in 1787. The convention met to create a brand new framework for the US government and address the problems with the Articles of Confederation.
Under the Articles of Confederation, Congress had no power to regulate commerce between states. This led to a slew of problems. Each state had its own commerce policies. Some states were engaging in international trade or protectionist policies which undermined trade and competition in other states. The states also passed laws to try to alleviate the debt crisis within their borders, which inevitably caused problems for other states and the country as a whole.
Because of this, delegates at the Constitutional Convention knew they needed to give Congress the power to regulate commerce for the whole country.
In delivering the opinion in Gibbons v. Ogden (more on that below), Justice Marshall said that the Commerce Clause was intended to:
rescue [the United States] from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.”
Controversy over Slavery
There was no unifying position on slavery at the Constitutional Convention. The Southern delegates wouldn't support a constitution that threatened slavery. Other delegates disliked slavery and some viewed it as a sin, but they didn't want to risk losing southern support for the Constitution. While provisions like the Three-Fifths Compromise and the Fugitive Slave Clause protected slavery, the Commerce Clause created a federal government with the power to regulate slavery.
As the abolitionist movement grew in the 19th century, abolitionists argued that the Commerce Clause gave Congress the authority to regulate slavery. They said that the practice of buying and selling enslaved people for economic and business reasons clearly authorized Congress to regulate it under the Commerce Clause. People who wanted to keep slavery argued that Commerce Clause did not give Congress the authority to regulate (or prohibit) slavery because it was a reserved power, meaning it could only be regulated by state governments. As the events of the early 19th century and then the Civil War unfolded, Congress did use its authority to ban slavery.
Commerce Clause Powers
The Commerce Clause is an example of an enumerated power. Congress has both Enumerated and Implied Powers. An enumerated power means something that is explicitly listed in the Constitution. However, as we'll see in the examples section, many decisions around the Commerce Clause also lean heavily on the implied powers given under the "Necessary and Proper Clause" in the Constitution.
To understand the many pieces of legislation and Supreme Court decisions around the Commerce Clause, we need to understand some of the controversies over the wording of the Commerce Clause.
Definition of "Commerce"
One of the biggest sticking points is the word "commerce." The Constitution does not provide a definition. In the beginning, people made a distinction between the selling/trading/exchanging of goods as commerce and said production and manufacturing didn't count. However, several Supreme Court cases expanded the meaning of commerce to anything affecting the intercourse of trade between states, or any economic activity.
Enterprise Steamboat, Author, James Lloyd, CC-PD-Mark
Steam boats were an important aspect of the first Supreme Court case making a decision on the Commerce Clause
Definition of "Regulate"
The word "regulate" also caused controversy. Most people have understood "regulate" to mean "to make regular." This interpretation means that Congress could have the power to ban things as well, which came up during the debates over the 13th Amendment and the abolition of slavery.
"Among the several states"
"Among the several states" isn't as clear as it sounds - does this mean trade between states (interstate commerce)? Between people within states (intrastate commerce)? Internationally? The issue of whether the federal government has the authority to regulate commerce within a state has come up in many court cases.
Interstate means between states. Intrastate means within the state.
An image from 1900 shows a wagon designated for interstate commerce. Source: Library of Congress
Interstate Commerce Clause (Dormant Clause)
The Commerce Clause can be interpreted with two meanings: on the one hand, it gives Congress the authority to regulate commerce (known as a positive power). On the other hand, it prevents states from passing laws that interfere with interstate or international commerce (known as a negative power). This negative power is known as the Interstate Commerce Clause (or the Dormant Commerce Clause) and has been used to strike down state laws that unfairly burdened interstate commerce.
Commerce Clause Examples
The growth of the Commerce Clause's powers can be seen throughout several Supreme Court cases. These cases offered interpretations that expanded Congress's authority. However, the Supreme Court (especially in recent years) has placed limits on the laws Congress can pass using this clause.
Gibbons v. Ogden
The first Supreme Court case regarding the Commerce Clause was Gibbons v. Ogden in 1824. Thomas Gibbons sued Aaron Ogden after Ogden blocked him from operating his steamboat in New York, saying that only he (and not Gibbons) had a New York license. New York had given a monopoly to two steamboat operators, which gave them the authority to provide licenses to other steamboat operators in New York. Ogden had purchased one of these licenses.
Gibbons operated in New Jersey and New York under a 1793 law passed by Congress that provided him a license to operate a boat. Gibbons said that even though he didn't have a license issued by New York, the federal government had given him the authority to operate in New York. The case went to the Supreme Court with the question: Which law was valid - the New York law or the federal law?
The Supreme Court concluded that under the Commerce Clause and the implied powers of the Necessary and Proper Clause, the federal government had the authority to regulate navigation, which included steamboats. Thus, the federal law trumped the state law. It also meant that the federal government could regulate intrastate activity if it impacted other states. In delivering the court's opinion, Chief Justice Thurgood Marshall said that the word "among":
may very properly be restricted to that commerce which concerns more States than one.
A portrait of Justice Marshall, who delivered the famous opinion on the Commerce Clause in Gibbons v. Ogden. Source: Wikimedia Commons, Author, Henry Inman CC-PD-Mark
Unions
In National Labor Relations Board (NLRB) v. Jones & Laughlin Steel Corp (1937), the NLRB accused the Steel Corp of discriminating against labor unions. The Supreme Court ruled that Congress had the authority to regulate the flow of interstate commerce, which included labour-management relations and unions. As a result of the Commerce Clause, Jones & Laughlin Steel Corp was charged with discriminating against unions.
Fair Labor Standards Act
In United States v. Darby (1938), the Supreme Court ruled that the federal government does have the constitutional authority to regulate things like minimum wage and employee working conditions. They cited the Commerce Clause, saying that it allowed the government to regulate things that touch interstate commerce, such as working conditions.
Civil Rights
In Heart of Atlanta Motel v. United States (1964), the owner of the motel refused to serve Black people. He sued the government, saying the Civil Rights Act of 1964, which banned businesses from discriminating against their customers based on race, was unconstitutional. The Supreme Court ruled that the federal government could regulate (and prohibit) discriminatory practices in businesses that engaged in commerce because of authority given by the Commerce Clause.
The Heart of Atlanta Motel, photographed in 1956. Source: Pullen Library, Georgia State University
Gun Control (High Water Mark of the Commerce Clause)
United States v. Lopez (1995) is viewed as the turning point of the Supreme Court's expansion of the Commerce Clause's power. Citing the Commerce Clause, the federal government had passed the Gun-Free School Act in 1990 to prohibit guns on school property after a high school student named Alfonzo Lopez carried a gun in his backpack. The Supreme Court ruled that carrying a gun didn't count as an economic activity and struck down the law as unconstitutional.
High water mark refers to the limit of the Commerce Clauses usability.
Health Care
NFIB v. Sebelius (2012) is a Supreme Court case that dealt with the Affordable Care Act (ACA). The ACA cited the authority of the Commerce Clause to institute an individual mandate, which meant that each person had to sign up for a minimum amount of coverage or face a penalty. The Supreme Court ruled that instituting a penalty was not a constitutional use of the Commerce Act because Congress couldn't coerce people into engaging in economic activity. However, they said that if the penalty was just a small tax, it wasn't severe enough to be coercive or force people to participate.
Commerce Clause - Key takeaways
- The Commerce Clause is a short phrase in the Constitution that gives Congress the power to regulate commerce.
- The Commerce Clause came at an important time in history as Congress attempted to address issues with the Articles of Confederation and slavery.
- Several Supreme Court decisions have expanded the interpretation of the Commerce Clause, starting with Gibbons v. Ogden.
- More recently, the Supreme Court has ruled that the Commerce Clause doesn't give Congress the right to regulate guns in schools.
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