The Commerce Clause of the US Constitution

Article 1, Section 8, Clause 3 of the United States Constitution gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." This clause is commonly referred to as "The Commerce Clause."

Interpretations of the Commerce Clause have differed significantly since the ratification of the Constitution. Conservative and libertarian legal experts interpret this clause from an originalist viewpoint, arguing that the power to "regulate" is actually the power to "make regular." Under this interpretation, the Commerce Clause was put into the Constitution to give the federal government the power to prevent states from erecting barriers to commerce against each other, such as leveling tariffs on goods from other states, or forbidding interstate exchange all together. Essentially, the originalists argue that the Framers wanted to ensure domestic free trade in America.

Progressives (and many neo-conservatives) tend to ignore historical arguments and rely on past Supreme Court interpretations of the Commerce Clause. One of the most cited cases is Wickard v. Filburn (1942). In this case, the Supreme Court ruled that the Commerce Clause gives Congress the right to regulate any economic activity that has substantial effect (in the aggregate) on interstate commerce.

Recently, the Commerce Clause has received revived attention in determining the constitutional basis for the "individual mandate" portion of the Obama Administration's new health care reform law, the Patient Protection and Affordable Care Act (colloquially known as "Obamacare"). The individual mandate would require all citizens to purchase health insurance, and those who do not purchase insurance would have to pay a penalty.

This interpretation has come under heavy criticism, and was even struck down as unconstitutional by two federal judges. Critics of Obamacare's individual mandate maintain that Congress does not not have the authority to punish people who choose not to purchase medical insurance. They point out that the act of not buying something cannot be construed as commerce or economic activity at all, and is therefore not subject to congressional regulation. However, three other federal judges upheld the individual mandate as constitutional under the Commerce Clause. They argued that because uninsured medical patients have a right to receive emergency medical care, regardless of their ability to pay, the choice to opt out of purchasing health insurance has a substantial effect on health care costs, and is thus subject to regulation under the Commerce Clause. It is widely believed that the U.S. Supreme Court will eventually make a decision on the constitutionality of Obamacare and its individual mandate, and in doing so, will drastically affect how the Commerce Clause is interpreted in the near future.

This topic page will help you understand the historical background and the current debate regarding the Commerce Clause. It contains discussions of the varying interpretations and analysis of how they have affected the growth of government regulation in the economy.

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"What can Congress do that the Supreme Court would find unconstitutional? Or, what can Congress do that a president would veto as unconstitutional? It is not much exaggeration to say that Congress can do whatever it can muster a majority vote for, whether it is constitutional or not. The members only have to worry about...

"If it's an economic decision, the federal government can make it for you. That's the takeaway from a ruling this afternoon by a federal judge in Michigan.

Judge George Caram Steeh, who was considering the constitutionality of the PPACA's individual mandate, which requires all Americans to purchase private health insurance, said...

"Is Congress going through the ordeal of trying to enact health-care reform only to have one of the main pillars--requiring individuals to obtain insurance--declared unconstitutional? An interesting debate for a constitutional law seminar. In the real world, not a big worry.

But it's being taken seriously in some quarters, so it'...

"Most of us recall from our civics classes the quaint notion that our federal government is one of 'limited' and 'enumerated' powers. We might also remember that James Madison, in his Federalist No. 45, assured skeptics of a central government that '[t]he powers delegated by the proposed Constitution to the Federal...

"The Supreme Court confirmation hearings for Elena Kagan provided key exchanges about the Commerce Clause, natural rights, and other issues that have convinced me to vote against her nomination. Based on her own testimony, she'll violate her oath as soon as she's sworn in.

The hearings, though, were not merely about Elena Kagan...

Despite a few recent rulings declaring the Patient Protection and Affordable Care Act unconstitutional, Ian Millhiser insists that the Act is not outside constitutional bounds. Millhiser argues that Congress has power to tax, "regulate the...

This page provides an excellent history of the Commerce Clause and the different ways it has been used to justify various forms of American legislation.

"Last week the Supreme Court ruled in United States v. Comstock et al. that Congress has the constitutional authority to empower federal district courts to civilly commit dangerous sex offenders who had completed their sentences. In effect, the courts can mandate indefinite confinement...

"The hottest ticket in Washington last week was to the Supreme Court, where seats had long been 'sold out' to hear oral argument in the case of United States v. Morrison. At issue is the constitutionality of the Violence Against Women Act (VAWA), which alone would explain the interest. But those focused on the feminist angle are missing the main event. At bottom,...

"Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

...

"Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: 'There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.' Then...

"The Supreme Court's recent decision saying that the federal government can prosecute those using marijuana for medical purposes, even when state laws permit such use, has been seen by many as an issue of being for or against marijuana. But the real significance of this decision has little to do with marijuana and everything to do with the kind of government that...

"Did you know that a federal judge has handed down a ruling on health reform saying the new legislation is not only constitutional, but also effectively says that your thought processes, which lead to your choices, can now be regulated by the federal government?

Yes you read that right."

"Supposing for the moment that we thought it were a good idea on policy grounds, would it be within the power of Congress to set ground rules for online advertisers who gather personal data from Web browsers? Recall that there are two particular rules that I've said I'd be tentatively open to, but which Jim rejects: a requirement of notice when information is being...

"As the challenge to Obamacare's constitutionality approaches the Supreme Court, the question on everyone's mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court's most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law...

"Maybe it was a matter of timing (Monica's book was just hitting the stands), but when a federal appeals court declared the Violence Against Women Act (VAWA) unconstitutional last week it didn't get much attention. In fact, it may be the most important court case this year, because it sharply limits the ability of Congress to create categories of lawsuits....

"Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as 'frivolous'? Well, as Jonathan notes below, the administration is now apparently telling the New York Times that the individual insurance 'requirement' and 'penalty' is really an exercise...

"In 2005 the Supreme Court said the federal government's power to 'regulate commerce…among the several states' extends to the tiniest speck of marijuana wherever it may be found, even in the home of a patient who grows it for her own medical use in compliance with state law. 'If Congress can regulate this under the Commerce Clause,' Justice Clarence Thomas warned...

"Last night's passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme...

"For supporters of Obamacare, Judge Henry Hudson's decision yesterday that the individual mandate is unconstitutional was a firebell in the night, to borrow Jefferson's phrase.

They had dismissed arguments that the mandate is unconstitutional as ravings from the right-wing fringe, but here is a...

"In 1990, the U.S. Congress passed a law forbidding possession of a firearm within 1,000 feet of any school. The Gun-Free School Zones Act was touted as a blow on behalf of education and against violence among children. Two years later, Alfonso Lopez Jr., a 12th-grader at Edison High School in San Antonio, Texas, carried a concealed .38-caliber pistol to school....

"Once President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress's powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance.

...

"James Madison once described the judiciary as 'an impenetrable bulwark against every assumption of power in the legislative or executive.' Had he lived to see the Supreme Court's sweeping definition of congressional power under the Commerce Clause, he might have revised that statement."

Commerce was universally regulated through taxes on imported trade by both States and Nations and not through laws over commercial activity.

"The verdict in Gonzales v. Raich last week was a stunning victory for federal power, and it came with an unusual endorsement. The Court upheld Drug Enforcement Agency prosecution of sick women who use medical marijuana to treat symptoms of their illnesses. Siding with the DEA, six justices held that the Commerce Clause of the U.S. Constitution (which gives the...

"Two federal district court judges have ruled that Congress exceeded its constitutional authority under the U.S. Constitution's commerce clause when it included the so-called individual mandate in the recent health-care act.

That makes the score on this issue among district court judges 3-2 in favor of the mandate. Given the...

Analysis Report White Paper

Randy E. Barnett analyzes the original intent behind the word "commerce" and seeks to understand whether the Founders meant it as "any gainful activity" or in the narrower sense of only "buying and selling." Barnett concludes that the Founders, in the Constitutional Convention and the Ratification Debates, only meant it in the narrow sense.

"Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified 'commerce' with the trade of commodities; originalists defending broad readings of federal power have identified 'commerce' with all gainful economic activity."

"Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had."

"In recent years, the Supreme Court has for the first time since the New Deal begun to rein in Congress’s power under the commerce clause. While such developments are welcome, Congress, as a co-equal branch of government, need not take its cues from the Supreme Court and should take the lead in restoring its own limits to the commerce power."

"Last spring the U.S. Supreme Court struck down as unconstitutional a key section of the 1994 Violence Against Women Act (VAWA). That section allowed a victim of rape or other violence 'motivated by gender' to sue the perpetrator for civil damages in federal court for violating her civil rights."

"At bottom, then, Lopez is not about gun control or even about federal-state relations but about whether the Court is ready to hold Congress to its constitutional limits. The Court should. For if the enumerated powers doctrine is in fact dead, other constitutional protections are in jeopardy as well."

"Unsure about the scope of the federal commerce power and, accordingly, the appropriate limits on state interference with interstate commerce, the courts, executives, and legislatures, at the federal and state level alike, are often at a loss about how to approach the problem."

"The Court's opinion in United States v. Lopez sent shock waves through official Washington, not least because Washington had simply assumed, since the era of the New Deal, that its regulatory powers were plenary."

As part of his analysis, Roland points out that the meanings of words such as "commerce" or "regulate" did not have the same meaning in the 18th century as they do today, thus concluding that the Founders never intended for the Commerce Clause (Article I, Section 8) to be interpreted as broadly as it is today.

"The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate."

"The Commerce Clause of the U.S. Constitution has been used to justify a wide expansion of government power, from antidiscrimination laws to drug prohibition to a ban on guns near schools."

"Through this new understanding of the power of the commerce clause, 20th century America sees unprecedented growth in federal regulation and criminalization on numerous fronts of civil society. This understanding continued until about 1995, when the Supreme Court struck down the Gun Free School Zones Act as unconstitutional."

"Starting in 2014, the recently enacted Patient Protection and Affordable Care Act (PPACA, P.L. 111-148) will require most U.S. residents to purchase health insurance or pay a financial 'penalty' to the government. This provision, popularly called the individual mandate, is the linchpin of some of the PPACA's most significant reforms."

"In this article I have inquired into the meaning of the legal term 'commerce' at the time the Constitution was written, debated, and ratified."

"In the original debates over adoption of the Constitution, 'regulation of commerce' was used, almost exclusively, as a cover of words for specific mercantilist proposals related to deep-water shipping and foreign trade."

"Even the staunchest free trader might reluctantly concede that the apparatus of protectionism—tariffs, import quotas, and anti-dumping duties—is constitutional because clause 3 of Article I, Section 8, of the U.S. Constitution delegates to Congress 'power...to regulate commerce with foreign nations...'"

"The federal government was supposed to be limited to a few defined powers. The Tenth Amendment to the Constitution—'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'—confirms it."

Video/Podcast/Media

"If Obamacare can mandate the purchase of health insurance, could it in theory also mandate the purchase of broccoli?" That's the question up being asked in this debate between Ilya Shapiro from the Cato Institute and Mark Hall from Wake Forest University.

This podcast discusses the Commerce Clause and Obamacare and whether or not the latter's individual mandate is constitutional. To paraphrase Robert Levy, this is the first time that the government has mandated the purchase of anything, and if they can do it in one place, they can do it anywhere.

"Wine wholesalers say an epidemic of alcohol awaits if the U.S. allows for the deregulation of wine distribution. But there's no reason, constitutional or otherwise, for wholesalers to maintain a death-grip on the movement of booze from one place to another. Ilya Shapiro, senior fellow of Constitutional Studies at the Cato Institute offers his thoughts."

"At the heart of the case against ObamaCare is the assertion that it's a violation of the Commerce Clause of the Constitution, which is supposed to allow the federal government to assure that commerce is regular. So why do so many conservatives believe that the commerce clause must be reigned in for ObamaCare, but viewed expansively when it comes to states setting...

"Judge Napolitano discusses a primary vehicle for expansion of federal authority and the demise of individual liberty, the Commerce Clause."

Legal expert Randy Barnett testifies before the Senate Judiciary Committee regarding the Commerce Clause and its application in the healthcare debate.

In this video, conservative pundit Ann Coulter weighs in on the individual mandate portion of "Obamacare" in her usual inflammatory style. She argues that if the commerce clause does indeed give Congress the authority to mandate that people purchase health insurance, Republicans should also mandate gun and Bible ownership as well.

In this video, Ilya Somin from George Mason University explains how the individual mandate is not justified under the Interstate Commerce Clause.

In this video, Sen. Coburn asks then Supreme Court Justice Nominee Elena Kagan about the limits of the Commerce Clause.

"Recently, Kathleen Sebelius spoke at the National Press Club in Washington, D.C. When asked by a CNSNews.com correspondent where does the government get the power to mandate that the Americans purchase health insurance, her response was 'I am not a lawyer' and plans to leave that up to the Department of Justice (DOJ)."

"Down on the boardwalk, we interview a few young Americans to find out what they know about the Constitution of the United States. Can you answer the questions? Does it matter?"

"The Patient Protection and Affordable Care Act (Obamacare) has set forth an individual mandate that requires all Americans to have health insurance. The justification for the law rests on the idea developed since the New Deal in the 1930s that any economic activity an individual engages in could impact the national economy and therefore can be regulated by the Federal Government based on its...

"As part of our Operation Health Freedom series, Judge Andrew Napolitano looks at health care and a justified use of Congress' interstate commerce regulation power."

"The individual mandate in ObamaCare represents a dramatic and unprecedented expansion of federal power. Randy Barnett, Cato Institute Senior fellow and a constitutional law professor at the Georgetown University Law Center, argues on C-SPAN that the Commerce Clause grants the federal government no such authority."

In this video, Roger Pilon, Director of the Center for Constitutional Studies at the Cato Institute, discusses the Interstate Commerce Clause with Judge Andrew Napolitano on the television show "Freedom Watch."

According to this video, one of the leading challenges of Obamacare has to do with the individual mandate and its relation to the Commerce Clause in the Constitution. This video describes the background of the Commerce Clause and whether or not the Obamacare law violates the Clause.

Primary Document

This case from 1935 marks one of the many times that the Supreme Court struck down New Deal legislation, this time dealing with the National Industrial Recovery act. The court ruled unanimously that the provisions of federal regulation authorized in this law were unconstitutional, as the Commerce Clause did not provide Congress with the power to regulate price and...

"In his piercing introduction to An Economic Interpretation the author wrote that 'whoever leaves economic pressures out of history or out of discussion of public questions is in mortal peril of substituting mythology for reality.' It was Beard's view that the founding fathers, especially Madison, Jay, and Hamilton, never made such a miscalculation. Indeed, these statesmen placed...

This case centered around two facets of the Constitution: the Commerce Clause and the regulation of taxes on imports. Chief Justice Marshall offered the opinion of the Court in this case, concluding with following statement:

"It has been contended that this construction of the power to regulate commerce, as was contended in construing the prohibition to...

James Kent was an American legal scholar. Widely popular, his Commentaries consist of a series of lectures on the history of law, the American Constitution, federal and municipal law, and laws concerning persons and property.

The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.

“In this case, the Commonwealth of Virginia …, through its Attorney General, challenges the constitutionality of the pivotal enforcement mechanism of the health care scheme adopted by Congress in the Patient Protection...

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

In this piece, Alexander Hamilton discusses the concept of trade regulation. Hamilton argues that the power to regulate trade should be held by Congress and the federal government. This treatise was written before the Constitution was adopted as the supreme law of the land, so it provides some historical insight into the arguments used by supporters of a federal...

The case of Corfield v. Coryell revolved around the issue of whether or not a certain vessel was at fault for taking oysters from an alleged New Jersey river. Among other things, it was argued that the detainment of the vessel was a violation of the...

Gibbons v. Ogden is considered a landmark supreme court case on the issue of the Interstate Commerce Clause. Aaron Ogden was given an exclusive license to operate a shipping business within the State of New York. He sued a man named Thomas Gibbons, who ran a competing shipping business between New Jersey and New York City, claiming that Gibbon's operations in the...

This Supreme Court case deals with how the Commerce Clause gives the federal government the right to criminalize the growing and personal usage of marijuana, even when these actions are in accordance to state law. 

California's Compassionate Use Act allows people to use limited amounts of marijuana for strictly medicinal...

Hamilton's reasoning for the creation of a national bank is that it falls under the implied powers of Congress and would better the country for the American people.

Heart of Atlanta Motel was a motel in Atlanta, Georgia that would not rent rooms to black men and women. When the Civil Rights Act was passed, the owner of the motel sued, arguing that Congress did not have the right to regulate his motel under the interstate commerce clause.

The Supreme Court ruled that not only did Congress...

In this brief portion of a letter written by James Madison to Joseph Cabell, Madison discusses his own understanding of the purpose and intent of the Commerce Clause. He believed that it was primarily put into the Constitution in order to prevent the individual states from levying import duties and tariffs on each other.

This brief introduction to James Madison's arguments against the Articles of Confederation highlights the problem of the individual states levying tariffs against each other. Madison argued that because Congress did not have an overarching power to regulate commerce under the Articles of Confederation, the individual states ended up behaving like economic rivals,...

Jefferson argues against the creation of a national bank on the grounds that it is not one of the delegated powers given to Congress under the Constitution.

Livingston v. Van Ingen is another case which centered around the question of the Commerce Clause and the rights it does or does not grant to Congress. In general, the opinion of this court is that Congress has a right to regulate "external" commerce and that...

The U.S. Supreme Court's highly anticipated decision which upheld the Affordable Care Act.

This case effectively marked the end of the Supreme Court's resistance to FDR's New Deal programs and legislation. Allegedly responding to Roosevelt's court packing threat, the Supreme Court ruled that the National Labor Relations Act of 1935 (The Wagner Act) was indeed constitutional.

Chief Justice Hughes ruled for an expansive...

In the 12th chapter of the book, Construction Construed and Constitutions Vindicated, John Taylor outlines his opinions and constitutional views regarding the General Welfare and the Congressional power to regulate Commerce.

This treatise, written by the United States' first Secretary of the Treasury, shows the word "commerce" to be a synonym for "trade" and not a catch-all phrase for economic activity. Alexander Hamilton believed in a strong central government and constantly tried to expand the role of the federal government, yet he understood that the word "commerce" did not refer to...

This letter from Richard Henry Lee to an unknown source briefly outlines Lee's opposition to the idea of giving Congress the power to regulate commerce. He believes that Congress will end up taking regulatory action that damages the southern economy while bolstering the northern economy.

Describing the Commerce Clause, St. George Tucker notes that the Clause was enacted in order "to suppress those jealousies, which must inevitably have arisen among the states, had any tax or duty been laid upon any particular...

In January 2011, U.S. District Judge Roger Vinson declared that "'The Patient Protection and Affordable Care Act' [is] unconstitutional." Judge Vinson's decision was carefully thought out and related to the Constitutional "Commerce Clause." Vinson also made an...

In August of 2011, the Eleventh Circuit Court of Appeals declared that parts of the PPACA were unconstitutional. This decision addresses the constitutionality of the Individual Mandate portion of Obamacare, as well as the difference between a tax and a penalty in relation to the PPACA's implementation.

In this case the Supreme Court ruled that a meatpacking plant, as part of the "current of commerce" between states, was subject to congressional regulation. According to the Court, Congress has the power to regulate commerce even if the commerical activity is localized, so long as it could eventually become part of interstate trade.

"HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States."

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

In this treatise, Thomas Paine manifests the understanding of the word "commerce" during the time of the writing of the Constitution. To the men of this era, the word "commerce" implied trade or the buying and selling of goods; it had no logical connection to production or activity. This is best shown in the paragraph below, where Paine speaks to the strength of...

This is considered a landmark case as it was the first time since the New Deal that federal legislation claiming authority under the commerce clause was overturned. 

Chief Justice William Rehnquist wrote the majority opinion for this case, declaring that the Gun-Free School Zones Act of 1990 was unconstitutional because...

Chief Justice Rehnquist delivered the majority opinion in this case, ruling that the Violence Against Women Act of 1994 was unconstitutional. This law gave victims of gender-motivated crimes the right to sue for damages in federal court. In this instance, the court ruled that the Commerce Clause and Fourteenth Amendment did not give Congress the authority to enact...

This court decision discusses Congressional boundaries in regulating U.S. commerce, particularly in relation to foreign commerce. Judge Davis seems to conclude that Congress has a perfect right to regulate commerce - if only for a short time - if...

This Supreme Court case is regarded as the case that threw open the doors of federal government regulation. Whenever the constitutional authority of Congress to regulate interstate commerce is brought up, legal scholars and analysts point to this case, which gives Congress the authority to regulate almost anything it wants to regulate.

...

This case revolved around the construction of a dam in the state of Delaware which was subsequently damaged by a sailing vessel. The accident caused some to suggest that Delaware had defied the Commerce Clause by building the dam. Chief Justice Marshall, however, declared...

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