Commerce Clause

• Relevant amendment: Tenth

Description: The clause in the United States (US) Constitution giving Congress the power to regulate trade among the states

Significance: The Supreme Court has upheld congressional use of the Commerce Clause as justification for a broad range of federal legislation

Article I, section 8 of the US Constitution states that Congress “shall have the power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The part of this clause dealing with the states was extremely important in enabling the US to develop an effective, integrated economic system. Still, its influence reaches far beyond the realm of a narrow definition of commerce. The first Supreme Court case involving the Commerce Clause, Gibbons v. Ogden (1824), established that it applied to interstate commerce but not to commerce within one state. Chief Justice John Marshall’s opinion in the case broadly defined commerce as all commercial “intercourse,” not only the traffic of goods. In the late nineteenth century, the Commerce Clause was cited as justification for the congressional establishment of the Interstate Commerce Commission (ICC) and the Sherman Antitrust Act (1890). The ICC was set up in 1887 to regulate railroads, trucking, and telecommunications, while the Sherman Antitrust Act gave the federal government power to prohibit anticompetitive behavior and break up monopolies. All of these areas of regulation applied in some form to commerce between the states.

In the early twentieth century, the federal government began using the Commerce Clause as the constitutional basis for national legislation addressing crime, public safety, and morality, as exemplified by the Mann Act of 1910, which prohibited interstate human trafficking, and the Automobile Theft Act of 1915, which made it a federal crime to transport a stolen vehicle across state lines. Until the 1930s, the Supreme Court maintained a distinction between manufacturing and commerce, but in 1937 it began to interpret the Commerce Clause broadly enough to allow regulating the manufacture of goods intended for interstate transportation and sale. Since World War II, considerable federal legislation has been based on the Commerce Clause. One of its most remarkable uses was justifying civil rights legislation in the 1960s. In cases such as Heart of Atlanta Motel v. United States (1964), the Supreme Court held that, because racial discrimination hurts interstate commerce, Congress can pass and enforce antidiscrimination laws.

In the twenty-first century, cases involving the Commerce Clause continued to focus on its interpretation and application. For example, in National Pork Producers Council v. Ross (2023), the National Pork Producers Council argued that California’s Proposition 12, a law restricting the sale of pork in California unless it met specific animal welfare standards, violated the Commerce Clause because it reached out-of-state and placed burdens on interstate commerce. The Supreme Court upheld the law, arguing against the National Pork Producers Council, and stating that Proposition 12 did not purposefully discriminate against out-of-state economic interests. Subsequent litigation involved other dormant Commerce Clause claims, such as a 2025 challenge to a Florida statute banning cultivated meat products on the ground that it unduly burdens interstate commerce, and a 2025 Second Circuit ruling in Variscite NY Four, LLC v. New York State Cannabis Control Board, in which the Court invalidated a state cannabis licensing provision that favored in-state applicants as violating the dormant Commerce Clause.

Bibliography

Barnett, Randy E. "The Original Meaning of the Commerce Clause." University of Chicago Law Review, vol. 68, no. 1, 2001, pp. 101–47.

Cornell Law School. "Commerce Clause - Legal Information Institute." Legal Information Institute, www.law.cornell.edu/wex/commerce_clause. Accessed 26 Aug. 2024.

Dickey, Dave. "The Dormant US Commerce Clause Is Again Being Litigated." Investigate Midwest, 11 June 2025, investigatemidwest.org/2025/06/11/the-dormant-us-commerce-clause-is-again-being-litigated. Accessed 15 Dec. 2025.

Frazelle, Brian. "Big Business Loses Dormant Commerce Clause as Tool Against States." Bloomberg Law News, 19 May 2023, news.bloomberglaw.com/us-law-week/big-business-loses-dormant-commerce-clause-as-tool-against-states. Accessed 26 Aug. 2024.

Killenbeck, Mark R. "A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States." Journal of Supreme Court History, vol. 38, no. 3, 2013, pp. 281–308.

Malyshev, Alexander, and Sarah Ganley. "In Variscite ruling, Dormant Commerce Clause Comes For New York's In-State Conviction Preference For Cannabis Licenses." Reuters, 10 Sept. 2025, www.reuters.com/legal/litigation/variscite-ruling-dormant-commerce-clause-comes-new-yorks-in-state-conviction--pracin-2025-09-10. Accessed 15 Dec. 2025.