Debates on Definition: To What Extent Can the Supreme Court Regulate Commerce?

Article 1, Section 8 of the constitution grants congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This clause has been the subject of debate for decades, with accepted interpretations varying over time. In particular, scholars hotly contest the extent and implications of the power to regulate interstate commerce, with the Supreme Court modifying its analysis across court cases. This article thus intends to chart this controversy.

The first point of contention is over the definition of commerce. Some scholars define commerce very narrowly, saying that only buying, selling, transporting, and bartering is commerce. Notably, this excludes manufacturing and the like, meaning that congress would be severely limited in how much it can regulate. However, many scholars do not employ this interpretation. Instead, they contend that commerce meant any economic interaction at all. Initially, the court followed the former meaning, even making laws non-applicable to manufacturing plants (U.S. v. E.C. Knight Co). There was, therefore, a severe limit on the power of the federal government.

The court soon opted to erode this limitation by enacting a new standard. During the Great Depression, the Roosevelt Administration pursued unprecedented economic regulations. Initially, the court struck down many of the regulations, as in Schechter v United States. As the depression progressed and the political calculations changed, the justices relented. With the deciding vote of Associate Justice Owen Roberts, the High Court allowed a statute regulating local commerce to stand (National Labor Relations Board v James & Laughlin Steel). In this case, the court established their new standard: that congress can regulate anything with a "close and intimate effect" on interstate commerce. The trend toward further regulatory power reached a pinnacle in Wickard v. Filburn, where the court found that any activity which affected interstate commerce in the aggregate could be regulated. The interstate commerce power thus became a general regulatory power; since almost anything can affect interstate commerce when there is a lot of it.

After these cases, not a single law was struck down by the court based on it not being covered by the commerce clause for many decades. Finally, in 1995, the Rehnquist court struck down a law, claiming that regulated action did not affect interstate commerce sufficiently (Lopez v. United States). Five years later, the court struck down another law, setting a new limitation on congressional power. They found that the ability to regulate things that affect interstate commerce does not extend to "noneconomic" actions (Morrison v. United States).

While this is the court's opinion, many scholars oppose their interpretation. Some prefer a more expansive regulatory power to all things that affect commerce, and some advocate abandoning that principle altogether (see dissenting and concurring opinions in Lopez, respectively). Despite their proclamations, the court seems to be taking a route down the middle, allowing or assailing legislation as they see fit.

By Jacob Shayefar

Editor Suhh Yeon Kim

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