Commerce Clause

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The Commerce Clause is the provision in the U.S. Constitution that establishes the power of Congress to regulate commerce among the states and with foreign entities. It is set forth in Article I, Section 8, Clause 3.

This is one of the most important, and most-often litigated, clauses in the U.S. Constitution. It is the single most important source of power for Congress, and has been used by it to pass laws governing business, civil rights, abortion and other social areas. It has often been invoked by big government liberals who wish to give more power to the Federal Government and/or dismantle states' rights.

The Supreme Court of the United States greatly expanded the reach of the clause in Heart of Atlanta Motel v. United States. The majority opinion cited Caminetti v. United States, which deemed that the interstate travel of passengers could be regulated as interstate commerce, and McCulloch v. Maryland, amongst others, to conclude that "[T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce".[1]

Only beginning in 1995, in Lopez v. United States, did the Rehnquist Court begin to limit the scope of what Congress might do based on this clause; in this case striking down the overarching Gun-Free School Zones Act of 1990 which was being used against a twelfth grader.

The primary initial legal challenge to ObamaCare is its lack of authority under the Commerce Clause, which prevailed 5–4 on this issue in 2012, but then lost 5-4 when it was upheld under the Taxing Power instead.


"Commerce" was a major topic of contention during the time of the Articles of Confederation and the formation of the Constitution. At the time, the states were much more independent, and were known for issuing taxes against each other.[2]

See also


  1. Justice Tom Clark (Dec 14 1964). ATLANTA MOTEL V. UNITED STATES, 379 U.S. 241 (1964) (English). Supreme Court of the United States. FindLaw. Retrieved on May 2, 2009.
  2. Madison Debates - July 23"The present advantage which N. York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number."

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