Also known as: commerce powers · Commerce Clause · interstate commerce power
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional authority granted to Congress to regulate commerce among the several states. This power reaches the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.
State officials in Maine enacted a statute prohibiting the importation of live baitfish from out of state. A commercial fisherman challenged the ban as violating the dormant commerce clause. The court upheld the statute after finding that it served the state's important interest in protecting local ecological resources and that no reasonable nondiscriminatory alternative existed.
North Carolina imposed a surcharge on the disposal of hazardous waste generated outside the state that exceeded the fee charged for in-state waste. An out-of-state waste hauler sued, claiming discrimination against interstate commerce. The court invalidated the surcharge because the differential treatment based on origin was presumptively invalid under the dormant commerce clause.
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A county ordinance required all solid waste generated within its borders to be delivered to a county-owned transfer station. A private hauler challenged the requirement as favoring a public facility. The court applied lenient review and upheld the ordinance because it directed waste to a government-owned facility performing a traditional public function.
Congress extended the minimum-wage and overtime provisions of the Fair Labor Standards Act to employees of state and local governments. A state challenged the extension as exceeding commerce power. The court upheld the statute, holding that states are protected from federal overreach through the political process rather than through judicial limits on the commerce power.
A federal statute expressly permitted states to impose higher disposal fees on certain out-of-state nuclear waste. A state enacted the authorized surcharge. An out-of-state generator challenged the fee under the dormant commerce clause. The court upheld the surcharge because Congress had expressly authorized the discrimination.
A high-school senior carried a concealed handgun to school. Federal prosecutors charged him under a statute that banned possession of firearms in school zones. The student moved to dismiss the indictment, arguing that the statute exceeded Congress's commerce power. The court agreed and struck down the statute because the regulated activity was non-economic and lacked a substantial effect on interstate commerce.
Congress may regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect interstate commerce. The third category generally requires economic or commercial activity that can be aggregated to show a substantial effect.
Supporting sources
No. The commerce power does not reach non-economic intrastate activity that lacks a substantial effect on interstate commerce even when aggregated. Purely local conduct such as simple possession of a firearm in a school zone falls outside the power.
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The commerce power is an affirmative grant to Congress. When Congress has not acted, the dormant commerce clause limits state laws that discriminate against or unduly burden interstate commerce. Congressional authorization can permit otherwise invalid state discrimination.
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…Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel , the Court warned that the scope of the interstate commerce power "must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in…