The Commerce Clause of the US Constitution

"If it's an economic decision, the federal government can make it for you. That's the takeaway from a ruling this afternoon by a federal judge in Michigan.

Judge George Caram Steeh, who was considering the constitutionality of the PPACA's individual mandate, which requires all Americans to purchase private health insurance, said...

"Most of us recall from our civics classes the quaint notion that our federal government is one of 'limited' and 'enumerated' powers. We might also remember that James Madison, in his Federalist No. 45, assured skeptics of a central government that '[t]he powers delegated by the proposed Constitution to the Federal...

Despite a few recent rulings declaring the Patient Protection and Affordable Care Act unconstitutional, Ian Millhiser insists that the Act is not outside constitutional bounds. Millhiser argues that Congress has power to tax, "regulate the...

"Last week the Supreme Court ruled in United States v. Comstock et al. that Congress has the constitutional authority to empower federal district courts to civilly commit dangerous sex offenders who had completed their sentences. In effect, the courts can mandate indefinite confinement...

"Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

"The Supreme Court's recent decision saying that the federal government can prosecute those using marijuana for medical purposes, even when state laws permit such use, has been seen by many as an issue of being for or against marijuana. But the real significance of this decision has little to do with marijuana and everything to do with the kind of government that...

"Supposing for the moment that we thought it were a good idea on policy grounds, would it be within the power of Congress to set ground rules for online advertisers who gather personal data from Web browsers? Recall that there are two particular rules that I've said I'd be tentatively open to, but which Jim rejects: a requirement of notice when information is being...

"Maybe it was a matter of timing (Monica's book was just hitting the stands), but when a federal appeals court declared the Violence Against Women Act (VAWA) unconstitutional last week it didn't get much attention. In fact, it may be the most important court case this year, because it sharply limits the ability of Congress to create categories of lawsuits....

"In 2005 the Supreme Court said the federal government's power to 'regulate commerce…among the several states' extends to the tiniest speck of marijuana wherever it may be found, even in the home of a patient who grows it for her own medical use in compliance with state law. 'If Congress can regulate this under the Commerce Clause,' Justice Clarence Thomas warned...

"For supporters of Obamacare, Judge Henry Hudson's decision yesterday that the individual mandate is unconstitutional was a firebell in the night, to borrow Jefferson's phrase.

They had dismissed arguments that the mandate is unconstitutional as ravings from the right-wing fringe, but here is a...

"Once President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress's powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance.

What 'To Regulate Commerce' Means
P.A. Madison
The Federalist Blog
August 21, 2006

• "Commerce was universally regulated through taxes on imported trade by both States and...

"Abstract: This article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a 'pragmatic...

"Over the course of the last decades, the commerce clause has been used as a primary source for the regulatory expansion of the national government. This reading of the clause, granting virtually unlimited regulatory power over the economy to the federal government, came out of a series of Supreme Court decisions at the time of the New Deal. In its original meaning...

"On November 8, election day, the Supreme Court will hear one of the most important and unusual cases to come before it in a long time, a case that raises fundamental questions about the power of Congress to legislate as it has for nearly 60 years. In that case, United States v. Lopez, the Court of Appeals for the Fifth Circuit struck down the 1990 Gun-Free School...

"The Court's opinion in United States v. Lopez sent shock waves through official Washington, not least because Washington had simply assumed, since the era of the New Deal, that its regulatory powers were plenary. Indeed, in the statute in question, the Gun-Free School Zones Act of 1990, Congress had not even bothered to cite the source of its...

"The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and...

"Article 1, Section 8, clause 3 of the United States Constitution states that 'Congress shall have the power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes'. This short and simple statement has been progressively used, in combination with a few other powers both granted and assumed by various federal actors, to...

"In this article I have inquired into the meaning of the legal term 'commerce' at the time the Constitution was written, debated, and ratified. I consulted all reported English court cases from the sixteenth, seventeenth, and eighteenth centuries; all American cases before 1790 available on the Westlaw database; all of the leading...

"Even the staunchest free trader might reluctantly concede that the apparatus of protectionism—tariffs, import quotas, and anti-dumping duties—is constitutional because clause 3 of Article I, Section 8, of the U.S. Constitution delegates to Congress 'power...to regulate commerce with foreign nations...'

Before we make too hasty a...

This podcast discusses the Commerce Clause and Obamacare and whether or not the latter's individual mandate is constitutional. To paraphrase Robert Levy, this is the first time that the government has mandated the purchase of anything, and if they can do it in one place, they can do it anywhere.

"At the heart of the case against ObamaCare is the assertion that it's a violation of the Commerce Clause of the Constitution, which is supposed to allow the federal government to assure that commerce is regular. So why do so many conservatives believe that the commerce clause must be reigned in for ObamaCare, but viewed expansively when it comes to states setting...

Legal expert Randy Barnett testifies before the Senate Judiciary Committee regarding the Commerce Clause and its application in the healthcare debate.

In this video, Ilya Somin from George Mason University explains how the individual mandate is not justified under the Interstate Commerce Clause.

"Recently, Kathleen Sebelius spoke at the National Press Club in Washington, D.C. When asked by a CNSNews.com correspondent where does the government get the power to mandate that the Americans purchase health insurance, her response was 'I am not a lawyer' and plans to leave that up to the Department of Justice (DOJ)."

"The Patient Protection and Affordable Care Act (Obamacare) has set forth an individual mandate that requires all Americans to have health insurance. The justification for the law rests on the idea developed since the New Deal in the 1930s that any economic activity an individual engages in could impact the national economy and therefore can be regulated by the Federal Government based on its...

"The individual mandate in ObamaCare represents a dramatic and unprecedented expansion of federal power. Randy Barnett, Cato Institute Senior fellow and a constitutional law professor at the Georgetown University Law Center, argues on C-SPAN that the Commerce Clause grants the federal government no such authority."

"In his piercing introduction to An Economic Interpretation the author wrote that 'whoever leaves economic pressures out of history or out of discussion of public questions is in mortal peril of substituting mythology for reality.' It was Beard's view that the founding fathers, especially Madison, Jay, and Hamilton, never made such a miscalculation. Indeed, these statesmen placed...

“In this case, the Commonwealth of Virginia …, through its Attorney General, challenges the constitutionality of the pivotal enforcement mechanism of the health care scheme adopted by Congress in the Patient Protection...

In this piece, Alexander Hamilton discusses the concept of trade regulation. Hamilton argues that the power to regulate trade should be held by Congress and the federal government. This treatise was written before the Constitution was adopted as the supreme law of the land, so it provides some historical insight into the arguments used by supporters of a federal...

Gibbons v. Ogden is considered a landmark supreme court case on the issue of the Interstate Commerce Clause. Aaron Ogden was given an exclusive license to operate a shipping business within the State of New York. He sued a man named Thomas Gibbons, who ran a competing shipping business between New Jersey and New York City, claiming that Gibbon's operations in the...

Hamilton's reasoning for the creation of a national bank is that it falls under the implied powers of Congress and would better the country for the American people.

In this brief portion of a letter written by James Madison to Joseph Cabell, Madison discusses his own understanding of the purpose and intent of the Commerce Clause. He believed that it was primarily put into the Constitution in order to prevent the individual states from levying import duties and tariffs on each other.

Jefferson argues against the creation of a national bank on the grounds that it is not one of the delegated powers given to Congress under the Constitution.

This case effectively marked the end of the Supreme Court's resistance to FDR's New Deal programs and legislation. Allegedly responding to Roosevelt's court packing threat, the Supreme Court ruled that the National Labor Relations Act of 1935 (The Wagner Act) was indeed constitutional.

Chief Justice Hughes ruled for an expansive...

This treatise, written by the United States' first Secretary of the Treasury, shows the word "commerce" to be a synonym for "trade" and not a catch-all phrase for economic activity. Alexander Hamilton believed in a strong central government and constantly tried to expand the role of the federal government, yet he understood that the word "commerce" did not refer to...

Describing the Commerce Clause, St. George Tucker notes that the Clause was enacted in order "to suppress those jealousies, which must inevitably have arisen among the states, had any tax or duty been laid upon any particular...

In August of 2011, the Eleventh Circuit Court of Appeals declared that parts of the PPACA were unconstitutional. This decision addresses the constitutionality of the Individual Mandate portion of Obamacare, as well as the difference between a tax and a penalty in relation to the PPACA's implementation.

"HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States."

In this treatise, Thomas Paine manifests the understanding of the word "commerce" during the time of the writing of the Constitution. To the men of this era, the word "commerce" implied trade or the buying and selling of goods; it had no logical connection to production or activity. This is best shown in the paragraph below, where Paine speaks to the strength of...

Chief Justice Rehnquist delivered the majority opinion in this case, ruling that the Violence Against Women Act of 1994 was unconstitutional. This law gave victims of gender-motivated crimes the right to sue for damages in federal court. In this instance, the court ruled that the Commerce Clause and Fourteenth Amendment did not give Congress the authority to enact...

This Supreme Court case is regarded as the case that threw open the doors of federal government regulation. Whenever the constitutional authority of Congress to regulate interstate commerce is brought up, legal scholars and analysts point to this case, which gives Congress the authority to regulate almost anything it wants to regulate.

"The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power...

"Levy and Mellor untangle complex Court opinions to explain how The Dirty Dozen harmed ordinary Americans. They argue for a Supreme Court that will enforce what the Constitution actually says about civil liberties, property rights, racial preferences, gun ownership, and many other controversial issues." -...

A detailed collection of the framers' papers and debates regarding the Constitution and the General Welfare language.