Congress’s Authority to Regulate Interstate Commerce
November 15, 2021
Congress’s Authority to Regulate Interstate Commerce
Clause 3 of Article I Section 8 of the U.S. Constitution,
The Supreme Court has identified three general categories
generally referred to as the Commerce Clause, is one of the
of activities that Congress can regulate pursuant to its
enumerated powers under which Congress may legislate.
Commerce Clause authority over interstate commerce.
The clause states that Congress shall have the power “to
First, Congress may regulate the use of the channels of
regulate Commerce with foreign Nations, and among the
interstate commerce. Second, Congress can protect
several States, and with the Indian Tribes.”
instrumentalities of interstate commerce, or persons or
things in commerce. Third, congressional authority under
Congress may only act pursuant to its enumerated powers.
the Commerce Clause reaches activities that substantially
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The scope
affect interstate commerce.
of those powers informs the kinds of laws Congress may
enact. Congress frequently invokes the Commerce Clause,
Channels of Interstate Commerce
and specifically the so-called Interstate Commerce Clause
This category encompasses physical conduits of interstate
that addresses commerce “among the several states,” as the
commerce such as highways, waterways, railroads,
authority for a variety of legislation regulating domestic
airspace, and telecommunication networks, as well as the
activity. The Supreme Court has often interpreted the scope
use of such interstate channels for ends Congress wishes to
of Congress’s authority to regulate interstate commerce
prohibit. As the Eleventh Circuit explained in United States
under the Commerce Clause, and that interpretation has
v. Ballinger, the commerce power includes the power to
evolved over time.
prevent use of the channels of commerce to consummate
harmful acts, even where those acts are themselves outside
Prior to the 1930s, the Supreme Court took a relatively
the flow of commerce. 395 F.3d 1218, 1228 (11th Cir.
constrained view of the scope of the Commerce Clause,
2005). The defendant in Ballinger was prosecuted for
holding, for instance, that “the production of articles,
traveling along interstate highways to burn churches in four
intended for interstate commerce, is a matter of local
different states. The Eleventh Circuit affirmed the
regulation” to which Congress’s Commerce Clause
constitutionality of the statute he violated, which prohibits
authority did not extend. Hammer v. Dagenhart, 247 U.S.
intentionally damaging or destroying religious real property
251, 272 (1918), overruled by United States v. Darby, 312
because of the religious character of that property, where
U.S. 100, 117 (1941). Through most of the latter half of the
the offense occurs in or affects interstate or foreign
twentieth century, the Court adopted a more expansive
commerce. As another example, under this category of
conception of Commerce Clause authority, allowing
permissible regulation, the federal courts have uniformly
Congress to regulate activities that largely occurred
upheld a federal prohibition on traveling across state lines
intrastate if there was a rational basis to believe the activity,
to commit intimate-partner abuse, reasoning that the
in aggregate, would have a substantial effect on interstate
prohibition regulates “the use of the interstate transportation
commerce. Beginning in the 1990s, the Court issued several
routes through which persons and goods move.” United
opinions confirming the existence of outer limits to
States v. Morrison, 529 U.S. 598, 613 n.5 (2000).
congressional power under the Commerce Clause and
striking down laws that transgressed those limits by
Instrumentalities, Persons, or Things
regulating certain purely intrastate, noneconomic activities.
The Commerce Clause extends as well to means of
commerce such as airplanes, trains, or automobiles, and to
Modern Scope of Congress’s Commerce
persons or things that are transported interstate by these
Clause Authority
instrumentalities. Thus, for instance, the Supreme Court has
The Supreme Court’s modern jurisprudence has interpreted
cited the federal prohibition on destruction of aircraft (18
the Commerce Clause to allow Congress to regulate a wide
U.S.C. § 32) as an example of regulation of an
range of activities. The Court has, however, found that the
instrumentality of interstate commerce. The Court has also
Commerce Clause does not authorize Congress to regulate
cited the prohibition on thefts from shipments moving in
inactivity. In National Federation of Independent Business
interstate or foreign commerce (18 U.S.C. § 659) as an
v. Sebelius, which challenged the individual mandate aspect
example of regulation of persons or things in commerce.
of the Affordable Care Act, the Supreme Court concluded
Perez v. United States, 402 U.S. 146, 150 (1971).
that “compel[ling] individuals to become active in
commerce by purchasing a product, on the ground that their
Intrastate Activities That Substantially Affect
failure to do so affects interstate commerce” exceeded
Interstate Commerce
Congress’s authority under the Commerce Clause. 567 U.S.
The Commerce Clause also permits Congress to regulate
519, 551-58 (2012).
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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Congress’s Authority to Regulate Interstate Commerce
seminal case establishing the breadth of Congress’s
down a federal prohibition on possessing guns in local
Commerce Clause authority, the Supreme Court upheld a
school zones, reasoning (among other things) that mere
law imposing quotas on wheat “marketing” that reached
possession of a firearm, standing alone, is not economic in
both wheat production intended for commerce and for
nature. Similarly, in United States v. Morrison, 529 U.S.
private “consumption on the farm,” concluding that “even if
598 (2000), the Court invalidated a provision establishing a
. . . activity be local and though it may not be regarded as
federal civil remedy for the victims of gender-motivated
commerce, it may still, whatever its nature, be reached by
violence, based, in part, on the conclusion that gender-
Congress if it exerts a substantial economic effect on
motivated crimes of violence are not economic activity.
interstate commerce[.]” Wickard v. Filburn, 317 U.S. 111,
118, 125 (1942). In Gonzales v. Raich, 545 U.S. 1 (2005),
Jurisdictional Element. Though not sufficient in itself to
the Court reaffirmed Wickard in upholding application of
establish Congress’s Commerce Clause authority, an
the Controlled Substances Act to the growth of marijuana
express jurisdictional element that limits the applicability of
for intrastate personal use, noting that the regulated
the law to those regulated activities with ties to interstate
activities relate to the production and consumption of a
commerce may be a significant consideration. For instance,
commodity for which there is an established (albeit illegal)
following the Supreme Court’s decision in Lopez, Congress
interstate market, and that failure to regulate cultivation of
added a jurisdictional element to the firearm-possession
marijuana for intrastate personal use would undercut the
prohibition that the Court had struck down, limiting the
regulation of that interstate market.
law’s reach to firearms that have moved in or that otherwise
affect interstate or foreign commerce. Although the
Under the modern Commerce Clause doctrine announced in
Supreme Court has not revisited this provision, lower
Wickard and affirmed in Raich, Congress has relied on its
federal courts generally have held that the amended law is
power over intrastate economic activities that substantially
constitutional under the Commerce Clause. E.g., United
affect interstate commerce to enact laws regulating
States v. Hill, 927 F.3d 188, 206 (4th Cir. 2019).
activities in a number of areas. This constitutional authority
supports federal regulation of activities that affect the
Findings. Likewise, Congress may strengthen the
environment, quarantine and other sanitary or health
Commerce Clause foundation for particular legislation by
activities, telecommunications and the internet, agriculture
including explicit findings in the legislation regarding its
and stockyards, insurance, and sports and entertainment.
impact on interstate commerce, particularly when the
Courts have generally upheld these and other laws as a
connection to commerce is not self-evident. Gonzales v.
valid exercise of Congress’s Commerce Clause authority.
Raich, 545 U.S. 1, 21 (2005). Such findings are not
essential to a court finding legislation a valid exercise of
In general, courts have identified four factors to consider
Commerce Clause authority. See, e.g., Lopez, 514 U.S. at
when assessing whether Congress may regulate an activity
562-63; Freier, 303 F.3d at 202. The Court has advised that
that in the aggregate has a substantial effect on interstate
“the existence of congressional findings is not sufficient, by
commerce:
itself, to sustain the constitutionality of Commerce Clause
legislation.” Morrison, 529 U.S. at 614.
(1) the economic nature of the activity; (2) a
jurisdictional element limiting the reach of the law
Link to Interstate Commerce. Finally, courts have looked
to a discrete set of activities that has an explicit
at the regulated activity’s connection to interstate
connection with, or effect on, interstate commerce;
commerce in reviewing the constitutionality of laws
(3) express congressional findings regarding the
challenged on Commerce Clause grounds. For example, the
regulated activity’s effects on interstate commerce;
D.C. Circuit upheld the constitutionality of the Endangered
and (4) the link between the regulated activity and
Species Act’s prohibition against “take” of endangered
interstate commerce.
species located solely within one state because, among
other things, the protection of endangered species
Norton v. Ashcroft, 298 F.3d 547, 555-56 (6th Cir. 2002);
“regulates and substantially affects commercial
see also United States v. Morrison, 529 U.S. 598, 610-19
development activity which is plainly interstate.” Nat’l
(2000).
Ass’n of Home Builders v. Babbitt, 130 F.3d 1041, 1058
(D.C. Cir. 1997) (Henderson, J., concurring); see id. at 1046
Economic Nature. Courts have used a variety of metrics to
n.3, 1056 (Wald, J.). See also Rancho Viejo, LLC v. Norton,
determine whether activity is economic in nature. For
323 F.3d 1062, 1068-80 (D.C. Cir. 2003). Similarly, in
example, the Fifth Circuit concluded in United States v. Ho
Voggenthaler v. Maryland Square LLC, the Ninth Circuit
that asbestos removal is an economic activity because it has
rejected a Commerce Clause challenge to federal regulation
a commercial purpose, because many businesses exist
of contaminated soil and groundwater located exclusively
solely to remove asbestos, and because the activity itself
in Nevada. 724 F.3d 1050, 1059-61 (9th Cir. 2013). The
involves many commercial considerations. 311 F.3d 589,
court held that a commercial operation had created the
602 (5th Cir. 2002). In another example, the Second Circuit
contamination and the resulting cleanup cost burdened
observed in Freier v. Westinghouse Electric Corporation
commerce. Id.
that “it is clear that the generation and disposal of waste
material by companies in connection with the manufacture
Michael A. Foster, Legislative Attorney
or processing of products is a business activity, and that the
storage of such wastes by others is economic activity.” 303
Erin H. Ward, Legislative Attorney
F.3d 176, 202 (2d Cir. 2002). By contrast, the Supreme
IF11971
Court in United States v Lopez, 514 U.S. 549 (1995), struck
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Congress’s Authority to Regulate Interstate Commerce
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