Myth: The Commerce Clause gives the government the power to regulate anything that is related to or substantially affects commerce in more than one state.
Truth: Article I, Section 8 of the U.S. Constitution states that the “congress shall have the power to regulate commerce among the several states….”
The original intent of granting congress the power to regulate interstate commerce through the Commerce Clause was to make “normal” or “regular” commerce between the states; it was aimed at preventing the states from enacting impediments to the free flow of commerce – impediments such as tariffs, quotas and taxes. This Congressional power was meant to be very limited, however, as can be seen by looking at Justice Joseph Story’s commentary on the Commerce Clause.
Supreme Court Justice Joseph Story was appointed by James Madison and served from 1811-1845. He wrote an authoritative work on constitutional interpretation titled, “Commentaries on the Constitution of the United States.” This work is authoritative not only because of Justice Story’s qualifications and expert analysis, but primarily because it was written when most of the founders were still living and engaging in politics; they would have had ample ability to correct any errors in his analysis.
According to Justice Story, commerce is “traffic” and “commercial intercourse.” He defines commerce “among the several states” as that commerce “intermingled” between several states:
“It does not, indeed, comprehend any commerce, which is purely internal, between man and man in a single state, or between different parts of the same state, and not extending to, or affecting other states. Commerce among the states means, commerce, which concerns more states than one. It is not an apt phrase to indicate the mere interior traffic of a single state. The completely internal commerce of a state may be properly considered, as reserved to the state itself.”
Given those definitions, what does the Commerce Clause enable Congress to regulate? Justice Story answers,
It is not doubted, that it extends to the regulation of navigation, and to the coasting trade and fisheries, within, as well as without any state, wherever it is connected with the commerce or intercourse with any other state, or with foreign nations. It extends to the regulation and government of seamen on board of American ships; and to conferring privileges upon ships built and owned in the United States in domestic, as well as foreign trade. It extends to quarantine laws, and pilotage laws, and wrecks of the sea. It extends, as well to the navigation of vessels engaged in carrying passengers, and whether steam vessels or of any other description, as to the navigation of vessels engaged in traffic and general coasting business. It extends to the laying of embargoes, as well on domestic, as on foreign voyages. It extends to the construction of light- houses, the placing of buoys and beacons, the removal of obstructions to navigation in creeks, rivers, sounds, and bays, and the establishment of securities to navigation against the inroads of the ocean. It extends also to the designation of particular port or ports of entry and delivery for the purposes of foreign commerce. These powers have been actually exerted by the ‘national government under a system of laws, many of which commenced with the early establishment of the constitution; and they have continued unquestioned unto our day, if not to the utmost range of their reach, at least to that of their ordinary application.
Justice Story is equally clear is explaining what regulations are not commerce regulations.
The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments.
Justice Story understood the necessity for having interstate commerce regulated only at the federal level. He also saw the danger that the founders saw in granting the federal government too much power in this area. For this reason the “interstate” qualification on commerce regulation was created. This essentially limits Congress’ regulations to the travel and flow of goods across state lines.
For an example, we will look at the poultry industry. Chickens are usually raised on farms, shipped to processing plants, processed, shipped to distributors, shipped to stores, and purchased and consumed by the consumers. During the process, according to Justice Story, Congress is only able to regulate the shipping of the chicken itself. It is not able to regulate the farmer, the processor, the distributor, the store, or the consumer whenever their actions are intrastate. The only area which Congress is able to regulate is the shipping – the travel and flow of commerce. From this understanding, one can see that the Commerce Clause is mostly intended to prevent states from burdening the flow of commerce in and out of their states rather than giving Congress vast and substantial regulatory power.
Various Supreme Court cases, however, have sought to alter the original intent of the Commerce Clause, and in so doing have made it one of the “elastic clauses” which have been used to excuse all manner of unconstitutional government programs, regulations, etc. in violation of the Constitution’s original intent. Indeed, Congress has regulated, supposedly through its Commerce Clause powers, most of the areas Justice Story defined as outside of commerce.
- Agriculture: in Wickard v. Filburn (1942) Congress was able to regulate the wheat grown by a farmer for his own private use.
- Labor issues: in National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) Congress was able to regulate the interactions between labor unions and corporations.
- Performance of Contracts: Perez v. United States (1971) Congress was allowed to regulate loan sharking on the grounds that it was occasionally connected with organized crime and organized crime affects interstate commerce.
- Capital and Machinery: in Heart of Atlanta Motel v. United States (1964) Congress was allowed to regulate the business practices of private, intrastate companies in order to combat racial discrimination.
- Wage Regulation: in Garcia v. San Antonio Transit Authority (1985), Congressional minimum wage regulations were expanded to include state employees.
Hope is not completely lost, however. In United States v. Lopez (1995) and United States v. Morrison (2000) the Supreme Court took a more conservative stance. Congress had tried to regulate intrastate criminal activity (guns in schools and violence against women, respectively) through claiming they affected interstate commerce. The court established a three-part test for determining the constitutionality of interstate commerce regulation. The first two – channels and instrumentalities – fit under Justice Story’s definition of travel and commercial intercourse. The third – activities which substantially affect or relate to interstate commerce – does not fit under Justice Story’s interpretation, but are a significant reduction in Congress’s assumption of power through the Commerce Clause.
