The Commerce Clause

Article I, Section 8 gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Commerce Clause is the constitutional basis for most modern federal regulation.

The Commerce Clause appears in a list of enumerated powers in Article I, Section 8 of the Constitution. The phrase "to regulate Commerce... among the several States" became, over time, one of the most consequential clauses in the document. Chief Justice John Marshall gave it an expansive reading in Gibbons v. Ogden in 1824, holding that interstate commerce included all commercial intercourse among the states. For the next century, however, the Court drew sharp lines between commerce and other activities like manufacturing, mining, and agriculture, which it held to be local matters beyond federal reach. The New Deal collided with that limited reading. The Supreme Court initially struck down major New Deal legislation as exceeding the commerce power. After 1937, the Court reversed course. In Wickard v. Filburn in 1942, it upheld federal regulation of wheat a farmer grew for his own consumption, on the theory that even small individual actions, taken in aggregate, affect interstate commerce. That reasoning supported a vast expansion of federal authority over the twentieth century. The Civil Rights Act of 1964 was upheld under the Commerce Clause, allowing Congress to ban racial discrimination in privately owned public accommodations. The Court began trimming the clause in the 1990s. United States v. Lopez in 1995 struck down a federal gun-free school zones law, holding that gun possession near a school was not economic activity. United States v. Morrison in 2000 similarly struck down parts of the Violence Against Women Act. NFIB v. Sebelius in 2012 held that Congress could not compel commerce, only regulate it. The clause remains the workhorse of federal power, but it is no longer treated as a blank check.