Chapter 4

THE FEDERAL COMMERCE POWER

This Chapter examines Congress’ power to “regulate commerce … among the several states.” This is the “commerce power.” The most important concepts in this Chapter are:

•     Test for commerce power: A particular congressional act comes within Congress’ commerce power if both of the following are true:
  •     Substantially affects commerce: The activity being regulated substantially affects commerce; and
  •     Reasonable means: The means chosen by Congress is “reasonably related” to Congress’ objective in regulating.
•     Conclusion: Where Congress thinks that what it is doing falls within its commerce power, the Court rarely disagrees, especially where the activity being regulated is itself “commercial.”
•     The Tenth Amendment as a limit on Congress’ power: The Tenth Amendment (“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People”) occasionally limits Congress’ ability to use its commerce power to regulate the states.

I. THE COMMERCE CLAUSE GENERALLY

A. Introduction:  Article I, §8 of the Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

1. Foreign and Indian regulation:  Congress’ power to regulate foreign trade and trade with Indian tribes is not of great interest to us here. It is sufficient to note that since the adoption of the Constitution, the Supreme Court has always recognized full power on Congress’ part to regulate these matters, since there is no countervailing interest in them on the part of the states. See N&R, pp. 133-134.

2. Commerce among the states:  Congress’ power to regulate commerce among the states, by contrast, is of paramount importance — it is upon the commerce power that many, perhaps most, congressional activities are based.