The Commerce Power of Congress Legally Granted by the Constitution
Under Section 8 of Article I of the Constitution, Congress has the power to regulate commerce among the states, in addition to commerce involving foreign nations and Native American tribes. Since the Constitution does not provide a definition for "commerce," scholars of constitutional law have debated whether it covers only trade and other economic activities, or whether it covers interactions across state lines more broadly. Meanwhile, the line between intrastate and interstate activity has grown increasingly blurry over time.
Aggressive efforts to wield this power have resulted in a series of Supreme Court cases addressing what Congress can and cannot compel states to do. Interpretations of the Commerce Clause have been controversial, oscillating between broad and narrow views throughout the Court’s history.
Historical Interpretations of the Commerce Clause
Some of the earliest decisions involving the Commerce Clause applied it broadly. In a 19th-century decision, the Supreme Court allowed Congress to regulate activity within a state that formed part of an interstate commercial scheme. The Court later determined that Congress could regulate local commerce if it could form part of a steady current in which products or services flowed across state lines.
During the Great Depression and the New Deal, the Supreme Court allowed Congress to exercise the commerce power expansively. It defined "commerce" as any activity that had a substantial economic effect on interstate commerce, or even an act with a cumulative impact that could affect interstate commerce. From this perspective, almost any commercial activity at a local level might be expected to meet the standard necessary to invoke the commerce power.
Modern Interpretations of the Commerce Clause
In the 1990s, the Supreme Court departed from its expansive interpretation of the Commerce Clause. It reviewed a challenge to the Gun Free School Zones Act, which was based on the commerce power under the theory that guns in school zones would increase the rate of violent crimes and in turn undermine the economy. For the first time since the New Deal, the Court rejected a Commerce Clause argument by the federal government. In US v. Lopez, it ruled that the commerce power extends only to the channels and instrumentalities of commerce, as well as actions that substantially affect interstate commerce. The Court reasoned that Congress is not entitled to exercise powers that are not enumerated by the Constitution. It also rejected the notion that local and national activities no longer could be separated.
A decade later, the 2005 decision of Gonzales v. Raich shifted back toward a broad understanding of the commerce power. The Supreme Court allowed Congress to criminalize the personal cultivation and use of marijuana in states that allow its medical use. Therefore, the direction of Commerce Clause jurisprudence remains unpredictable in the 21st century.
