The Commerce Clause

The commerce clause is within Article 2 Section 8 of the United States Constitution. This clause provides the U.S. Congress the power to regulate commerce both between the US and foreign nations as well as between the states. Over time, the commerce clause has been broadly interpreted by the Supreme Court to allow Congress to regulate many things that do not, on its face, seem to be related to commerce.

The Supreme Court has determine that Congress can regulate:

  • Channels of Commerce: roads, waterways, airspace, etc.
  • Persons, Things and Instrumentality Involved in Commerce: employees, products, machinery, etc.
  • Activities with a Substantial Effect on Commerce

Congress generally relies on the “substantial effect” category in order to exercise its commerce clause power because essentially everything affects commerce. The question is whether or not it “substantial” effects commerce.

In order to determine whether or not an activity has a substantial effect on commerce, Congress must consider three main things:

  • Is there an aggregate effect on other states by the class of activities regulated?
  • Is this an area that is traditionally regulated by the states?
  • Is this an economic activity?

If an activity has an aggregate effect on the other states, then the federal government can regulated it. This is true even if the activity is happening solely within the bounds of a state. For example, the Supreme Court ruled that Congress could regulate a farmer who grows wheat for his own consumption, rather than for sale. The rationale is that if everyone grew their own wheat it would have an aggregate effect on the states that produce wheat. Thus, though the farmer is not obviously involved in commerce, Congress may still regulate his personal consumption.

If Congress is attempting to regulate an area not usually regulated by the federal government then it must be considered with more scrutiny. Since the commerce clause gives the federal government large powers to regulate the states, the Supreme Court is attempting to ensure that traditional views on state sovereignty are upheld.

Whether or not an activity is economic is also a consideration, though not required to determine that there is a substantial effect on commerce. For example, Congress has the power to pass legislation that bans guns on school campuses. Though bringing a gun onto a school campus is not economic in nature, it may affect the economics of children’s consumption of guns in the future or pose a threat to their life that will impact their ability to engage in economic activity. If you want more like me, my page on duress might help!