Locating the boundaries: the scope of Congress's power to regulate Commerce.

Author:Bork, Robert H.

The Congress shall have Power ... To regulate Commerce ... among the several States.

--U.S. Constitution, Art. I, [section] 8, cl. 3


    In the wake of the American Revolution, neither the Continental Congress nor the States acting on their own could respond effectively to the external and internal trade disputes that threatened the new country's prosperity and peace. "It may be doubted," wrote Chief Justice John Marshall, "whether any of the evils proceeding from the feebleness of the federal government, contributed more to that great [constitutional] revolution which introduced the [modern constitutional] system, than the deep and general conviction, that commerce ought to be regulated by Congress." (1) Accordingly, although the federal government was to be limited to exercising only enumerated powers, those powers included the power to regulate commerce, thus remedying this deficiency in the Articles of Confederation.

    Regrettably, but perhaps inevitably, "[t]he ink was not yet dry on the Constitution when its revision began." (2) Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined.

    Despite this expansion of federal power, however, certain actions and policies of the several States increasingly threaten the free flow of goods and services in interstate commerce; we still face the problem that led to the creation of the federal Constitution. Unsure about the scope of the federal commerce power and, accordingly, the appropriate limits on state interference with interstate commerce, the courts, executives, and legislatures, at the federal and state level alike, are often at a loss about how to approach the problem.

    Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate. This Article attempts to provide direction to those who, although fully aware of these significant and enduring changes, seek nonetheless to assess the propriety of federal and state legislation with an eye toward respecting the original purpose of the enumeration of congressional power and, therefore, to effect a proper balance between the national and state government.

    There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.

    Moreover, as Edward Banfield has argued, the attempt to define the outer limits of national power, as Article I, Section 8 of the Constitution does, was likely a flawed enterprise, doomed to failure from the very beginning:

    Nothing of importance can be done to stop the spread of federal power, let alone to restore something like the division of powers agreed upon by the framers of the Constitution. The reason lies in human nature: men cannot be relied upon voluntarily to abide by their agreements, including those upon which their political order depends. There is an antagonism, amounting to an incompatibility, between popular government--meaning government in accordance with the will of the people--and the maintenance of limits on the sphere of government. (3) Orginalists thus face a particularly difficult task in trying to find a way to give current effect to the original philosophy that animated the adoption of the Commerce Clause and other limited federal powers. That philosophy is federalism, which remains a constitutional value. It must be remembered that federalism not only limits the federal government but also gives it very powerful means to carry out the tasks assigned it. Accordingly, Congress should carefully examine every piece of proposed legislation to determine whether the state or federal government should address the particular problem.

    This Article examines the original purpose of the Commerce Clause, assesses the evidence and scholarship concerning its original meaning, and applies that understanding to several examples of modern legislative import. This analysis shows that the Clause was crafted, among other reasons, to vest the federal government with the ability to protect commerce between the States from the discriminatory interference of self-interested States. As the Supreme Court said in 1888, "the object of vesting in Congress the power to regulate commerce with foreign nations and among the several States was to insure uniformity of regulation against conflicting and discriminating state legislation." (4)

    The evidence further suggests that the text of the Commerce Clause was designed to empower Congress to regulate trade between and among the States--that is, the buying and selling of goods and services in interstate commerce. The Commerce Clause does not seem to have granted Congress the power directly to regulate manufacturing, labor, agriculture, or industry, although the Court long ago expanded the Clause to cover such subjects. Congress likely has the power to prohibit certain practices in interstate commerce, and some measure of its power to regulate commerce is probably shared concurrently with the States. Given the text of and purpose behind the Clause, Congress certainly has the power, at a minimum, to displace state laws that discriminate against interstate commerce, either explicitly or implicitly.

    Harder questions arise when Congress uses its legitimate power over commerce to impose conditions on the entry of a product into the stream of commerce that may have the effect of regulating manufacture, labor, or agriculture. It may be that Congress lacks the power ab initio to impose such a regulation in the absence of any threat to interstate commerce, but that enough inconsistent regulations by enough States can pose such a threat and thus make the exercise of congressional power legitimate. Our regime gives rise to difficult questions and is susceptible to Congressional abuse, but the occasional difficulty in drawing lines does not mean that the enterprise should be abandoned.

    This Article also surveys Supreme Court case law from the earliest interpretation of the commerce power to the evolution of the modern formulation during the New Deal, as well as the Court's recent attempt to reestablish the principle that there are some limits to Congress's power under the Commerce Clause. Unfortunately, because the Court did not have many opportunities to examine the Clause until after the founding era, this survey contributes only a little to the understanding of the original purpose and role of the Commerce Clause. Even so, this history tracks the evolution of the Clause into its modern form, examining how that form can perhaps be reconciled both with the original purpose of the Clause and also applied to current federalism questions.

    Finally, the Article addresses four specific topic areas: tort reform, environmental law, criminal law, and transportation regulation. This analysis suggests that, in the absence of the guiding principle provided by the original purpose of the Commerce Clause, Congress may be both too bold and too timid in exercising the commerce power. Congress is often too bold in routinely invoking the Commerce Clause to regulate manufacturing and industry in the absence of a threat to interstate commerce. Yet Congress has also been too timid, in that it has allowed certain impediments to interstate commerce to persist.

    In the area of national tort reform, for example, Congress may unnecessarily fear acting even though a legitimate exercise of the Commerce Clause provides the necessary power--viz., where numerous and conflicting state laws impair the free flow of commerce. Environmental law, on the other hand, may seem a tempting arena for federal legislation because the problem itself is at times interstate. Environmental issues that are national but not commercial do not seem, as an original matter, appropriate for national resolution under the commerce power. This does not mean that courts or legislators should treat existing federal environmental legislation as unconstitutional. Rather, existing statutes should be interpreted against a background that respects federalism concerns to the extent possible.

    With respect to criminal law, although modern Commerce Clause jurisprudence often requires applying old standards to new situations, some situations will never suitably fit a particular standard. Most crime was and is local or noncommercial or both, and therefore Congress's ability to regulate crime under the commerce power should be rather limited.

    Finally, we consider the application of the commerce power to transportation regulation, an area that is often both commercial and interstate. We conclude that although the Commerce Clause may grant the federal government broad power to regulate transportation, even that power is limited. Federal regulation of transportation must still be tied to commercial and interstate concerns. Moreover, when appropriating funds, federal mandates must be directly linked to the purpose of that grant.

    Although this Article is meant to address the scope of Congress's power under the Commerce Clause and not preemption law, we note that having a sense of where federal powers cease and exclusive state power starts has important implications for preemption analysis as well. Knowing Congress's limits not only constrains Congress's ability to invade the States' prerogatives, but is also helpful in ensuring that Congress is accorded the full scope of its...

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