CRS Annotated Constitution

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The Commerce Clause as a Source of National Police Power

The Court has several times expressly noted that Congress’ exercise of power under the commerce clause is akin to the police power exercised by the States.803 It should follow, therefore, that Congress may achieve results unrelated to purely commercial aspects of commerce, and this result in fact has often been accomplished. Paralleling and contributing to this movement is the virtual disappearance of the distinction between interstate and intrastate commerce.

Is There an Intrastate Barrier to Congress’ Commerce Power?—Not only has there been legislative advancement and judicial acquiescence in commerce clause jurisprudence, but the melding of the Nation into one economic union has been more than a little responsible for the reach of Congress’ power. “The volume of interstate commerce and the range of commonly accepted objects of government regulation have . . . expanded considerably in the last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress’ commerce power.”804

Reviewing the doctrinal developments laid out in the prior pages, it is evident that Congress’ commerce power is fueled by four very interrelated principles of decision, some old, some of recent vintage.[p.204]

First, the commerce power attaches to the crossing of state lines, and Congress has validly legislated to protect interstate travelers from harm, to prevent such travelers from being deterred in the exercise of interstate traveling, and to prevent them from being burdened. Many of the 1964 public accommodations law applications have been premised on the point that larger establishments do serve interstate travelers and that even small stores, restaurants, and the like may serve interstate travelers, and, therefore, it is permissible to regulate them to prevent or deter discrimination.805

Second, it may not be persons who cross state lines but some object that will or has crossed state lines, and the regulation of a purely intrastate activity may be premised on the presence of the object. Thus, the public accommodations law reached small establishments that served food and other items that had been purchased from interstate channels.806 Congress has validly penalized convicted felons, who had no other connection to interstate commerce, for possession or receipt of firearms, which had been previously transported in interstate commerce independently of any activity by the two felons.807 This reach is not of newly–minted origin. In United States v. Sullivan,808 the Court sustained a conviction of misbranding, under the Federal Food, Drug and Cosmetic Act. Sullivan, a Columbus, Georgia, druggist had bought a properly labeled 1000–tablet bottle of sulfathiazole from an Atlanta wholesaler. The bottle had been shipped to the Atlanta wholesaler by a Chicago supplier six months earlier. Three months after Sullivan received the bottle, he made two retail sales of 12 tablets each, placing the tablets in boxes not labeled in strict accordance with the law. Upholding the conviction, the Court concluded that there was no question of “the constitutional power of Congress under the commerce clause to regulate the branding of articles that have[p.205]completed an interstate shipment and are being held for future sales in purely local or intrastate commerce.”809

Third, Congress’ power reaches not only transactions or actions that occasion the crossing of state or national boundaries but extends as well to activities that, though local, “affect” commerce, a combination of the commerce power enhanced by the necessary and proper clause. The seminal case, of course, is Wickard v. Filburn,810 sustaining federal regulation of a crop of wheat grown on a farm and intended solely for home consumption. The premise was that if it were never marketed, it supplied a need otherwise to be satisfied only in the market, and that if prices rose it might be induced onto the market. “Even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.”811 Coverage under federal labor and wage–and–hour laws after the 1930s showed the reality of this doctrine.812

In upholding federal regulation of strip mining, the Court demonstrated the breadth of the “affects” standard. One case dealt with statutory provisions designed to preserve “prime farmland.” The trial court had determined that the amount of such land disturbed annually amounted to 0.006% of the total prime farmland acreage in the Nation and, thus, that the impact on commerce was “infinitesimal” or “trivial.” Disagreeing, the Court said: “A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.”813 Moreover, “[t]he pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce.”814 In a companion case, the Court reiterated that “[t]he denomination of an activity as a ‘local’ or ‘intrastate’ activity does not resolve the question whether Congress may regulate it under the Commerce Clause. As previously noted, the commerce power ‘ extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to[p.206]regulate interstate commerce.”815 Judicial review is narrow. Congress’ determination of an “effect” must be deferred to if it is rational, and Congress must have acted reasonably in choosing the means.816

Fourth, a still more potent engine of regulation has been the expansion of the class–of–activities standard, which began in the “affecting” cases. In Perez v. United States,817 the Court sustained the application of a federal “loan–sharking” law to a local culprit. The Court held that, although individual loan–sharking activities might be intrastate in nature, still it was within Congress’ power to determine that the activity was within a class the activities of which did affect interstate commerce, thus affording Congress the opportunity to regulate the entire class. While the Perez Court and the congressional findings emphasized that loan–sharking was generally part of organized crime operating on a national scale and that loan–sharking was commonly used to finance organized crime’s national operations, subsequent cases do not depend upon a defensible assumption of relatedness in the class.

Thus, the Court applied the federal arson statute to the attempted “torching” of a defendant’s two–unit apartment building. The Court merely pointed to the fact that the rental of real estate “unquestionably” affects interstate commerce and that “the local rental of an apartment unit is merely an element of a much broader commercial market in real estate.”818 The apparent test of whether aggregation of local activity can be said to affect commerce was made clear next in an antitrust context.819 Allowing the continuation of an antitrust suit challenging a hospital’s exclusion of a surgeon from practice in the hospital, the Court observed that in order to establish the required jurisdictional nexus with commerce, the appropriate focus is not on the actual effects of the conspiracy but instead is on the possible consequences for the affected market if the conspiracy is successful. The required nexus in this case was sufficient because competitive significance is to be measured by a general evaluation of the impact of the restraint on other partici[p.207]pants and potential participants in the market from which the surgeon was being excluded.820

Supplement: [P. 207, add to text following n.820:]

For the first time in almost 60 years,21 the Court invalidated a federal law as exceeding Congress’ authority under the Commerce Clause.22 The statute was a provision making it a federal offense to possess a firearm within 1,000 feet of a school.23 The Court reviewed the doctrinal development of the Commerce Clause, especially the effects and aggregation tests, and reaffirmed that it is the Court’s responsibility to decide whether a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged.24 The Court identified three broad categories of activity that Congress may regulate under its commerce power. “First, Congress may regulate the use of the channels of interstate commerce . . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce,25 even though the threat may come only from intrastate activities . . . . Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.” 26

Clearly, said the Court, the criminalized activity did not implicate the first two categories.27 As for the third, the Court found an insufficient connection. First, a wide variety of regulations of “intrastate economic activity” has been sustained where an activity substantially affects interstate commerce. But the statute being challenged, the Court continued, was a criminal law that had nothing to do with “commerce” or with “any sort of economic enterprise.” Therefore, it could not be sustained under precedents “upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” 28 The provision did not contain a “jurisdictional element which would ensure, through case–by–case inquiry, that the firearm possession in question affects interstate commerce.” 29 The existence of such a section, the Court implied, would have saved the constitutionality of the provision by requiring a showing of some connection to commerce in each particular case. Finally, the Court rejected the arguments of the Government and of the dissent that there existed a sufficient connection between the offense and interstate commerce.30 At base, the Court’s concern was that accepting the attenuated connection arguments presented would result in the evisceration of federalism. “Under the theories that the Government presents . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” 31

Whether Lopez bespoke a Court determination to police more closely Congress’ exercise of its commerce power, so that it would be a noteworthy case,32 or whether it was rather a “warning shot” across the bow of Congress, urging more restraint in the exercise of power or more care in the drafting of laws, was not immediately clear. The Court’s decision five years later in United States v. Morrison,33 however, suggests that stricter scrutiny of Congress’ commerce power exercises is the chosen path, at least for legislation that falls outside the area of economic regulation.34 The Court will no longer defer, via rational basis review, to every congressional finding of substantial effects on interstate commerce, but instead will examine the nature of the asserted nexus to commerce, and will also consider whether a holding of constitutionality is consistent with its view of the commerce power as being a limited power that cannot be allowed to displace all exercise of state police powers.

In Morrison the Court applied Lopez principles to invalidate a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender–motivated violence. Gender–motivated crimes of violence “are not, in any sense of the phrase, economic activity,” 35 the Court explained, and there was allegedly no precedent for upholding commerce–power regulation of intrastate activity that was not economic in nature. The provision, like the invalidated provision of the Gun–Free School Zones Act, contained no jurisdictional element tying the regulated violence to interstate commerce. Unlike the Gun–Free School Zones Act, the VAWA did contain “numerous” congressional findings about the serious effects of gender–motivated crimes,36 but the Court rejected reliance on these findings. “The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . . [The issue of constitutionality] is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.” 37 The problem with the VAWA findings was that they “relied heavily” on the reasoning rejected in Lopez—the “but–for causal chain from the initial occurrence of crime . . . to every attenuated effect upon interstate commerce.” As the Court had explained in Lopez, acceptance of this reasoning would eliminate the distinction between what is truly national and what is truly local, and would allow Congress to regulate virtually any activity, and basically any crime.38 Accordingly, the Court “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Resurrecting the dual federalism dichotomy, the Court could find “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” 39


803 E.g., Brooks v. United States, 267 U.S. 432, 436–437 (1925); United States v. Darby, 312 U.S. 100, 114 (1941). See Cushman, The National Police Power Under the Commerce Clause, 3 Selected Essays on Constitutional Law (Chicago: 1938), 62.
804 New York v. United States, 112 S.Ct. 2408, 2418–2419 (1992).
805 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964); Daniel v. Paul, 395 U.S. 298 (1969).
806 Katzenbach v. McClung, 379 U.S. 294, 298, 300–302 (1964); Daniel v. Paul, 395 U.S. 298, 305 (1969).
807 ‘Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212 (1976). However, because such laws reach far into the traditional police powers of the States, the Court insists Congress clearly speak to its intent to cover such local activities. United States v. Bass, 404 U.S. 336 (1971). See also Rewis v. United States, 401 U.S. 808 (1971); United States v. Enmons, 410 U.S. 396 (1973). A similar tenet of construction has appeared in the Court’s recent treatment of federal prosecutions of state officers for official corruption under criminal laws of general applicability. E.g., McCormick v. United States, 500 U.S. 257 (1991); McNally v. United States, 483 U.S. 350 (1987). Congress has overturned the latter case. 102 Stat. 4508 , Sec. 7603, 18 U.S.C. Sec. 1346 .
808 332 U.S. 689 (1948).
809 Id., 698–699.
810 317 U.S. 111 (1942).
811 Fry v. United States, 421 U.S. 542, 547 (1975).
812 See Maryland v. Wirtz, 392 U.S. 183, 188–193 (1968).
813 Hodel v. Indiana, 452 U.S. 314, 323–324 (1981).
814 Id., 324.
815 Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 281 (1981) (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)).
816 Id., 276, 277. The scope of review is restated in Preseault v. ICC, 494 U.S. 1, 17 (1990). Then–Justice Rehnquist, concurring in the two Hodel cases, objected that the Court was making it appear that no constitutional limits existed under the commerce clause, whereas in fact it was necessary that a regulated activity must have a substantial effect on interstate commerce, not just some effect. He thought it a close case that the statutory provisions here met those tests. Supra, 452 U.S., 307–313.
817 402 U.S. 146 (1971).
818 Russell v. United States, 471 U.S. 858, 862 (1985).

Supplement: [P. 206, add to n.818:]

In a later case the Court avoided the constitutional issue by holding the statute inapplicable to the arson of an owner–occupied private residence. Jones v. United States, 120 S. Ct. 1904 (2000). An owner–occupied building is not “used” in interstate commerce within the meaning of the statute, the Court concluded.

819 Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).
820 Id., 330–332. The decision was 5–to–4, with the dissenters, however, of the view that Congress could reach the activity, only that they thought Congress had not.

Supplement Footnotes

21 The last such decision had been Carter v. Carter Coal Co., 298 U.S. 238 (1936) .
22 United States v. Lopez, 514 U.S. 549 (1995) . The Court was divided 5 to 4, with Chief Justice Rehnquist writing the opinion of the Court, joined by Justices O’Connor, Scalia, Kennedy, and Thomas, with dissents by Justices Stevens, Souter, Breyer, and Ginsburg.
23 The Gun–Free School Zones Act of 1990, Pub. L. No. 101–647, Sec. 1702, 104 Stat. 4844, 18 U.S.C. Sec. 922(q)(1)(A). Congress subsequently amended the section to make the jurisdiction turn on possession of “a firearm that has moved in or that otherwise affects interstate or foreign commerce.” Pub. L. No. 104–208, Sec. 657, 110 Stat. 3009–370.
24 514 U.S. at 556–57, 559.
25 For a recent example of such regulation, see Reno v. Condon, 120 S. Ct. 666 (2000) (information about motor vehicles and owners, regulated pursuant to the Driver’s Privacy Protection Act, and sold by states and others, is an article of commerce).
26 514 U.S. at 558–59.
27 Id. at 559.
28 Id. at 559–61.
29 Id. at 561.
30 Id. at 563–68.
31 Id. at 564.
32 “Not every epochal case has come in epochal trappings.” Id. at 615 (Justice Souter dissenting) (wondering whether the case is only a misapplication of established standards or is a veering in a new direction).
33 120 S. Ct. 1740 (2000). Once again, the Justices were split 5 to 4, with Chief Justice Rehnquist’s opinion of the Court being joined by Justices O’Connor, Scalia, Kennedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissenting.
34 For an expansive interpretation in the area of economic regulation, decided during the same Term as Lopez, see Allied–Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) .
35 120 S. Ct. at 1751.
36 Dissenting Justice Souter pointed to a “mountain of data” assembled by Congress to show the effects of domestic violence on interstate commerce. 120 S. Ct. at 1760–63. The Court has evidenced a similar willingness to look behind congressional findings purporting to justify exercise of enforcement power under section 5 of the Fourteenth Amendment. See discussion under “enforcement,” infra. In Morrison itself, the Court determined that congressional findings were insufficient to justify the VAWA as an exercise of Fourteenth Amendment power. 120 S. Ct. at 1755.
37 120 S. Ct. at 1752.
38 120 S. Ct. at 1752–53. Applying the principle of constitutional doubt, the Court in Jones v. United States, 120 S. Ct. 1904 (2000), interpreted the federal arson statute as inapplicable to the arson of a private, owner–occupied residence. Were the statute interpreted to apply to such residences, the Court noted, “hardly a building in the land would fall outside [its] domain,” and the statute’s validity under Lopez would be squarely raised. 120 S. Ct. at 1911.
39 120 S. Ct. at 1754.
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