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November 15, 2021
Congress's Authority to Regulate Interstate Commerce
Clause 3 of Article I Section 8 of the U.S. Constitution,
generally referred to as the Commerce Clause, is one of the
enumerated powers under which Congress may legislate.
The clause states that Congress shall have the power to
regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.
Congress may only act pursuant to its enumerated powers.
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The scope
of those powers informs the kinds of laws Congress may
enact. Congress frequently invokes the Commerce Clause,
and specifically the so-called Interstate Commerce Clause
that addresses commerce among the several states, as the
authority for a variety of legislation regulating domestic
activity. The Supreme Court has often interpreted the scope
of Congress's authority to regulate interstate commerce
under the Commerce Clause, and that interpretation has
evolved over time.
Prior to the 1930s, the Supreme Court took a relatively
constrained view of the scope of the Commerce Clause,
holding, for instance, that the production of articles,
intended for interstate commerce, is a matter of local
regulation to which Congress's Commerce Clause
authority did not extend. Hammer v. Dagenhart, 247 U.S.
251, 272 (1918), overruled by United States v. Darby, 312
U.S. 100, 117 (1941). Through most of the latter half of the
twentieth century, the Court adopted a more expansive
conception of Commerce Clause authority, allowing
Congress to regulate activities that largely occurred
intrastate if there was a rational basis to believe the activity,
in aggregate, would have a substantial effect on interstate
commerce. Beginning in the 1990s, the Court issued several
opinions confirming the existence of outer limits to
congressional power under the Commerce Clause and
striking down laws that transgressed those limits by
regulating certain purely intrastate, noneconomic activities.
Modern Scope of Congress's Commerce
Clause Authority
The Supreme Court's modern jurisprudence has interpreted
the Commerce Clause to allow Congress to regulate a wide
range of activities. The Court has, however, found that the
Commerce Clause does not authorize Congress to regulate
inactivity. In National Federation of Independent Business
v. Sebelius, which challenged the individual mandate aspect
of the Affordable Care Act, the Supreme Court concluded
that compel[ling] individuals to become active in
commerce by purchasing a product, on the ground that their
failure to do so affects interstate commerce exceeded
Congress's authority under the Commerce Clause. 567 U.S.
519, 551-58 (2012).
The Supreme Court has identified three general categories
of activities that Congress can regulate pursuant to its
Commerce Clause authority over interstate commerce.
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress can protect
instrumentalities of interstate commerce, or persons or
things in commerce. Third, congressional authority under
the Commerce Clause reaches activities that substantially
affect interstate commerce.
Channels of Interstate Commerce
This category encompasses physical conduits of interstate
commerce such as highways, waterways, railroads,
airspace, and telecommunication networks, as well as the
use of such interstate channels for ends Congress wishes to
prohibit. As the Eleventh Circuit explained in United States
v. Ballinger, the commerce power includes the power to
prevent use of the channels of commerce to consummate
harmful acts, even where those acts are themselves outside
the flow of commerce. 395 F.3d 1218, 1228 (11th Cir.
2005). The defendant in Ballinger was prosecuted for
traveling along interstate highways to burn churches in four
different states. The Eleventh Circuit affirmed the
constitutionality of the statute he violated, which prohibits
intentionally damaging or destroying religious real property
because of the religious character of that property, where
the offense occurs in or affects interstate or foreign
commerce. As another example, under this category of
permissible regulation, the federal courts have uniformly
upheld a federal prohibition on traveling across state lines
to commit intimate-partner abuse, reasoning that the
prohibition regulates the use of the interstate transportation
routes through which persons and goods move. United
States v. Morrison, 529 U.S. 598, 613 n.5 (2000).
Instrumentalities, Persons, or Things
The Commerce Clause extends as well to means of
commerce such as airplanes, trains, or automobiles, and to
persons or things that are transported interstate by these
instrumentalities. Thus, for instance, the Supreme Court has
cited the federal prohibition on destruction of aircraft (18
U.S.C. § 32) as an example of regulation of an
instrumentality of interstate commerce. The Court has also
cited the prohibition on thefts from shipments moving in
interstate or foreign commerce (18 U.S.C. § 659) as an
example of regulation of persons or things in commerce.
Perez v. United States, 402 U.S. 146, 150 (1971).
Intrastate Activities That Substantially Affect
interstate Commerce
The Commerce Clause also permits Congress to regulate
wholly local, intrastate economic activities that in the
aggregate substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549, 558-59 (1995). In the
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