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Commerce Clause of the US Constitution

7. What is the “Commerce Clause”?

Article I, Section 8, specifically grants to the Federal Government the right to  “regulate commerce … among the several states…”

The Commerce Clause allows the Federal Government to regulate any activity that affects “interstate commerce”. It is the most commonly employed justification for the passage of federal laws affecting citizens and businesses within the US. In reality, almost any sort of business activity affects interstate commerce and thus falls under the regulatory authority of the Federal Government. The Federal Government does not, however, have the authority to regulate an activity that is carried out solely within a state’s borders and has no discernible effect on interstate commerce.

•    Example: The Federal Government may prohibit discrimination by hotels and theaters that serve individuals crossing state lines. It would not, however, be able to prohibit an individual from raising plants for personal consumption on private land, when the seeds for those plants do not originate outside of the state and the plants produced will never be sold commercially or transferred outside of the state.

Unless an area of law is expressly reserved for federal regulation, states have the authority to pass laws based upon their police power. The state law cannot “intend to regulate” or “substantially conflict with” interstate commerce. The substantially conflict with provision is known as the “Dormant Commerce Clause”.

•    Discussion: Can you think of any activities that are regulated under state law that would be outside of the regulatory authority of the Federal Government? Can you think of any historical cases where the Federal Government has passed a federal law that overturns state law? (Hint: Think about civil rights legislation and state laws discriminating against certain individuals.)

•    Practice Question: Clarence owns land in Georgia. He plans on extracting a rare type of mineral from the land and selling it to baseball teams to rub on the baseball to reduce the bright glare of the ball when batting. The Federal Government passes a law that prohibits the sale of this type of product. Clarence is outraged that the Federal Government will not allow him to collect and sell mud from his own land. Does the Federal Government have authority to prohibit Clarence’s intended business? Explain.


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