The Commerce Clause of the US Constitution

The Commerce Clause describes an enumerated power listed in the US Cobstitution. The clause states that the United States Congress shall have the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.

Dispute exists within the courts as to the range of powers granted to Congress by the Commerce Clause. As noted below, it is often paired with the Necessary and Proper Clause, and the combination used to take a more broad, expansive perspective of these powers. However, the effect of the Commerce Clause has varied significantly depending on the US Supreme Court's interpretation.

During the Marshall Court era (1801-1835), interpretation of the Commerce Clause gave Congress jurisdiction over numerous aspects of intrastate and interstate commerce as well as activity that had traditionally been regarded not to be commerce. Starting in 1937, following the end of Lochner era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited. Since United States v. Lopez (1995), congressional use of the Commerce Clause has become slightly restricted again to be limited to matters of trade or any other form of restricted area (whether interstate or not) and production (whether commercial or not).

The Commerce Clause is the source of federal drug prohibition laws under Controlled Substances Act. In a 2005 medical marijuana case, Gonzales v. Raich, the US Supreme Court rejected the argument that the ban on growing medical marijuana for personal use exceeded the powers of Congress under the Commerce Clause. Even if no goods were sold or transported across state lines, the Court found that there could be an indirect effect on interstate commerce and relied heavily on a New Deal case, Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops because the aggregate effect of individual consumption could have an indirect effect on interstate commerce.

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This blog entry is sponsored by Monde Nissin.