Clause 3 Of the United States Constitution

¶ … Clause 3 of the United States Constitution -- was apparently originally intended to give the federal government and the U.S. Congress the authorization to tackle "certain economic issues" (Patterson, 2012). The economic issues that the Commerce Clause was intended to relate to was the power to: first, regulate commerce with foreign nations, and two, with Native American tribes. This paper delves into the Commerce Clause and finds that there has been some abuse of the clause by the federal courts.

The Commerce Clause

The Commerce Clause authorizes Congress the power "…to regulate commerce with foreign nations, and among the several states, and with the Indian tribes…" (Cornell Law).

According to the Cornell University Law School, the Commerce Clause has historically been seen as a "restriction on states' powers to regulate" and as a kind of "grant of congressional authority." In fact Congress has used the Commerce Clause as a justification for wielding legislative authority over states "…and their citizens" (Cornell Law). The reality of that power and authority is that states are not allowed (in many cases) to pass their legislation that would "discriminate against or excessively burden interstate commerce" (Cornell Law).

In several instances, the Supreme Court has used the Commerce Clause for various purposes that seem to stray outside what the original intend of the clause was. For example in 1905, the Court used the clause to "…halt price fixing in the Chicago meat industry"; in this instance the Court held that Congress did have the right to regulate the meat market under the Sherman Anti-Trust Act (Cornell Law, p. 1).

In getting the Civil Rights Act passed in 1964, a major piece of legislation that prohibited discrimination and basically banned segregation against African-Americans, President Johnson used the Commerce Clause "…in order to allow the federal government to charge non-state actors with Equal Protection violations, which it had been unable to do to that point because of the Fourteenth Amendment's limited application to state actors" (Cornell Law, p. 2).

Supreme Court Justice Clarence Thomas has defined the Commerce Clause more narrowly than others, according to Raney Barnett of the University of Chicago Law Review. Barnett references Thomas' view that when Congress uses the clause to regulate manufacturing or agriculture that "exceeds the powers of Congress under the clause" (Barnett, 2001, p. 2). However, Barnett believes Thomas' view is "highly debatable" because there are scholars that believe the original intent referred to any "gainful activity," including manufacturing and agriculture in addition to "trade and exchange" (Barnett, p. 2).

Meantime Texas Congressman Ron Paul claims the Supreme Court has "…utterly abused the commerce clause for decades" (Paul, 2012). He cites the "infamous" case in 1942 (Wickard v. Filburn); in this case the Supreme Court held that a farmer that grows wheat for his own family needs nonetheless affects interstate commerce "…presumably by not participating in it!" (Paul, p. 2). Paul claims that the mandate within the new healthcare law (Affordable Care Act) that requires all citizens to have health insurance by 2014) "…clearly exceeds the federal government's powers under the interstate commerce clause"; this is "patently obvious," Paul continues, because the power to "regulate commerce cannot include the power to compel commerce!" (p. 2). Paul goes on to assert that the Court should find the Affordable Care Act unconstitutional.