CRS Annotated Constitution

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Foreign Commerce: Banned Articles.—The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since 1842. In that year it forbade the importation of obscene literature or pictures from abroad.769 Six years later, it passed an act “to prevent the importation of spurious and adulterated drugs” and to provide a system of inspection to make the prohibition effective.770 Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887, the importation by Chinese nationals of smoking opium was prohibited,771 and subsequent statutes passed in[p.199]1909 and 1914 made it unlawful for anyone to import it.772 In 1897, Congress forbade the importation of any tea “inferior in purity, quality, and fitness for consumption” as compared with a legal standard.773 The Act was sustained in 1904, in the leading case of Buttfield v. Stranahan.774 In “The Abby Dodge” an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained but construed as not applying to sponges taken from the territorial water of a State.775

In Weber v. Freed,776 an act prohibiting the importation and interstate transportation of prize–fight films or of pictorial representation of prize fights was upheld. Chief Justice White grounded his opinion for a unanimous Court on the complete and total control over foreign commerce possessed by Congress, in contrast implicitly to the lesser power over interstate commerce.777 And in Brolan v. United States,778 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the question of Congress’ power to prohibit foreign commerce. It has been earlier noted, however, that the purported distinction is one that the Court both previously to and subsequent to these opinions has rejected.

Interstate Commerce: Power to Prohibit Questioned.—The question whether Congress’ power to regulate commerce “among the several States” embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution’s interpretation, a debate the final resolution of which in favor of congressional power is an event of first importance for the future of American federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade.779 The debate was concluded ninety–nine years later by the decision in United States v. Darby,780 in which the Fair Labor Standards Act was sustained.781


Interstate Commerce: National Prohibitions and State Police Power.—The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884, the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden.782 In 1903, power was conferred upon the Secretary of Agriculture to establish regulations to prevent the spread of such diseases through foreign or interstate commerce.783 In 1905, the same official was authorized to lay an absolute embargo or quarantine upon all shipments of cattle from one State to another when the public necessity might demand it.784 A statute passed in 1905 forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation.785 In 1912, a similar exclusion of diseased nursery stock was decreed,786 while by the same act and again by an act of 1917,787 the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those above described for the prevention of the spread of animal disease. While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce,788 this view has today been abandoned.


769 5 Stat. 566, 28 .
770 9 Stat. 237 (1848).
771 24 Stat. 409 .
772 35 Stat. 614 ; 38 Stat. 275 .
773 29 Stat. 605 .
774 192 U.S. 470 (1904).
775 223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947).
776 239 U.S. 325 (1915).
777 Id., 329.
778 236 U.S. 216 (1915).
779 Groves v. Slaughter, 15 Pet. (40 U.S.) 449, 488–489 (1841).
780 312 U.S. 100 (1941).
781 The judicial history of the argument may be examined in the majority and dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251 (1918), a five–to–four decision, in which the majority held Congress not to be empowered to ban from the channels of interstate commerce goods made with child labor, since Congress’ power was to prescribe the rule by which commerce was to be carried on and not to prohibit it, except with regard to those things the character of which—diseased cattle, lottery tickets—was inherently evil. With the majority opinion, compare Justice Stone’s unanimous opinion in United States v. Darby, 312 U.S. 100, 112–124 (1941), overruling Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Commerce, 3 Selected Essays on Constitutional Law (Chicago: 1938), 103.
782 23 Stat. 31 .
783 32 Stat. 791 .
784 33 Stat. 1264 .
785 33 Stat. 1269 .
786 37 Stat. 315 .
787 39 Stat. 1165 .
788 Illinois Central Railroad v. McKendree, 203 U.S. 514 (1906). See also United States v. DeWitt, 9 Wall. (76 U.S.) 41 (1870).
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