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“When those who are governed do too little, those who govern can- and often will- do too much.”
Second Inaugural Address as Governor of California, Sacramento, January 4, 1971
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” Article 1, Section 8, Clause 3
The few words of the Commerce Clause have a tremendous impact on the power of the Congress to regulate and control international, interstate, and Indian Tribe activity. Since the clause is so broad and undefined, it lends itself to attempts at Congressional overreach of power. Through the years, this clause has been interpreted and re-interpreted many times by the Courts.
Commerce is defined as the buying and selling of goods on a large scale and between different places.
The first part of the clause “To regulate commerce with foreign nations” gives Congress complete and exclusive control over international commerce. This clause allows congress to pass import and export laws, to control the means of transportation of goods and services as well as communication about them, and to exercise control over the immigration process.
A positive aspect this power is that it helps to keep our commercial relationships with other countries uniform. As an example, it prevents individual states with seaports from setting their own rules, regulations, and fees.
Congress also deals with collection of tariffs on imported goods, protection from importation of diseased foods or other products, and prevention of exportation of materials that are necessary for production of goods within the United States (as in times of war).
We the people give Congress complete control over foreign commerce.
The benefit to we the people is:
• Government revenue and protection of home industries
• Safeguards to health
• Regulation of immigration
• Operation of seaports and airports
• Uniform regulation of international trade
The most controversial and often-discussed part of the clause is “to regulate commerce…and among the several States…” This is the regulation of interstate commerce; it goes hand-in-hand with Clause 1 of Section 8, the Spending (Tax and Spend) Clause. These powers have enabled our country to make the changes necessary to go from an agricultural nation to a large industrial nation. The powers enable the Congress to address problems on a uniform, national level.
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According to the Findlay’s in Your Rugged Constitution, the regulation of interstate commerce includes:
• All things that move among the states, including goods, persons, and words.
• The modes of transportation including railroads, airplanes, ships, express companies, and the waterways and airspace.
Interstate commerce refers to movement from state to state or through a state to get to another state. It also includes products that are made or mined in one state for use in another state. An example of this would be mining iron ore in Wisconsin for use in a steel mill in Illinois.
Interstate commerce law also restricts the states in that Congress may challenge laws or taxes established by a state unconstitutional in the Courts if they interfere with interstate commerce or regulation of commerce.
The third part of the clause “to regulate commerce…with the Indian tribes;” gives the federal government the power to communicate with and oversee the activities of Indian Tribes. This allows for uniform treatment via the federal government vs. potential inconsistency of laws between the states.
We the people give Congress the authority to regulate interstate commerce and supervise trade with Indian Tribes.
The benefit to we the people is:
• Free flow of goods among the states without tariffs
• Maintenance and supervision of transportation by water, land, and air
• Prevention of the movement of harmful goods into the country
• Protection of Indians from exploitation
This post discusses the way the Commerce Clause was viewed in our country before the 1930’s. After that time, the Courts allowed the congress to expand the power of the Commerce Clause many times. Most recently, this concern was addressed in the Supreme Court decision on the Affordable Care Act. In writing about this decision, Chief Justice Roberts shows how he managed to open the way for a push-back of the broad-reaching Congressional power via the Commerce Clause. In my next post, I will discuss some aspects of the historic changes to the Congressional power of regulating commerce over the last 80 or so years.
References:
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950
Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998
Webster’s Dictionary
US Constitution
Reclaiming the Shining City 
They dropped the ball on protecting our industry and controlling immigration. They give our industry away and immigration is out of control. Thanks for explaining this to me.
They have dropped the ball! More to come in the next post, with a little burst of hope for the future.