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The U.S. Congress possesses no legislative power that cannot be traced to the U.S. Constitution.[1] Article I, §8, Clause 3 of the U.S. Constitution provides that:

The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; . . . . . . [and] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .[2]

This is known as the Commerce Clause. There are three categories of activities subject to congressional regulation under the Commerce Clause. Congress may regulate the use of the channels of interstate commerce,[3] or persons or things in interstate commerce, although a threat may come only from intrastate activities.[4] Finally, Congress may regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).[5]

Over the years, the U.S. Supreme Court has regularly confirmed the enormous breadth of Congress’s legislative prerogatives under the Commerce Clause. Within the last decade, however, the Court has announced a series of decisions pointed out that Congress’ Commerce power is not without limit. United States v. Lopez[6] and United States v. Morrison[7] are perhaps the best know of these.

U.S. v. Lopez[]

Lopez held that Congress lacked the authority under the Commerce Clause to enact the Gun-Free School Zones Act,[8] which outlawed possession of a firearm within 1000 feet of a school.[9] In doing so, Lopez mapped Congress’ Commerce Clause powers:

First, Congress may regulate the use of the channels of interstate commerce. . . . Heart of Atlanta Motel, [Inc. v. United States, 379 U.S. 241, 256 (1964)]("'[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained and is no longer open to question.'").

Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even through the threat may come only from intrastate activities. See, e.g., . . . Perez [v. United States], 402 U.S. 146, 150 (1971)] ("[F]or example, the destruction of an aircraft (18 U.S.C. §32), or . . . thefts from interstate shipments (18 U.S.C. §659).").

Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. 514 U.S. at 558-59 (several citations of the Court omitted).

Since the School Zone Act addressed neither the channels nor the content of commerce, it had to find coverage under the power to regulate matters that “substantially affect” interstate or foreign commerce. This it could not do. It was devoid of any economic component and so could claim no kinship to earlier cases approving congressional regulation of various forms of intrastate economic activity that substantially affected interstate commerce], such as, “regulation of intrastate coal mining, intrastate extortionate credit transactions [loan sharking], restaurants utilizing substantial interstate supplies, inns and hotels catering to interstate guests, and production and consumption of homegrown wheat,” 514 U.S. at 559-60.

Moreover, the Act lacked the kind of explicit restraints or guidelines that might have confined its application to instances more clearly within the Commerce power. Its criminal proscription contained no “commerce” element; it did not, for example, outlaw possession of a firearm, which had been transported in interstate commerce, within 1000 feet of a school. Its enactment occurred without the accompaniment of legislative findings or declarations of purpose that might have guided appropriate enforcement limitations. The Act’s overreaching was all the more troubling because it sought to bring federal regulation to school activities, an area where the states “historically have been sovereign.”[10]

U.S. v. Morrison[]

Morrison echoed Lopez, quoting it extensively in the course of an opinion that found that the Commerce Clause did not empower Congress to create a federal civil remedy for the victims of gender-motivated violence.[11] Other opinions confirm that the Commerce Clause must be read in light of the principles of federalism reflected in the Tenth Amendment. The Clause does not empower Congress to compel the states to exercise their sovereign legislative or executive powers to implement a federal regulatory scheme.[12]

Limitations on congressional action[]

The Court has held that in exercising its power under the Commerce Clause, Congress may not “commandeer” the state regulatory processes by ordering states to enact or administer a federal regulatory program.[13] The Court has extended this principle by holding that Congress may not circumvent the prohibition on commandeering a State’s regulatory processes “by conscripting the State’ s officers directly.”[14]

Trademark protection[]

It has long been accepted that Congress has the power to enact trademark legislation under the Commerce Clause, despite the fact that trademarks may be seen as a form of intellectual property; that trademark law protects material that does not meet standards for copyright or patent protection; and that the protection may last indefinitely.

The Supreme Court’s opinion in The Trademark Cases[15] held unconstitutional an early attempt by Congress to enact a trademark law, based on a lack of congressional power under either the Copyright Clause or the Commerce Clause. According to the Court, the Copyright Clause did not provide authority for the legislation because trademarks have different “essential characteristics” from inventions or writings, since they are the result of use (often of already-existing material) rather than invention or creation, and do not depend on novelty or originality.[16] The Commerce Clause did not provide authority because the law governed all commerce and was not limited to interstate or foreign commerce, “the kind of commerce which Congress is authorized to regulate."[17] The opinion suggests that similar legislation limited as to the type of commerce involved would pass constitutional muster under the Commerce Clause. Indeed, such legislation was subsequently enacted and has continued unchallenged since 1905.

Internet gambling[]

These limitations, notwithstanding, the federal appellate courts have concluded, thus far, that the federal gambling statutes, directed as they are against an economic activity, come safely within Congress’ legislative authority under the Commerce Clause.[18]


  1. U.S. Const. Amends. IX, X.
  2. U.S. Const., art. I, §8, cls. 3, 18.
  3. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964) (full-text) (stating that "the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained.").
  4. Southern R. Co. v. United States, 222 U.S. 20 (1911) (full-text) (upholding amendment to the Safety Appliance Act as applied to vehicles used in intrastate commerce).
  5. See United States v. Lopez, 514 U.S. 549, 558-59 (1995) (full-text) (citations omitted).
  6. 514 U.S. 549 (1995).
  7. 529 U.S. 598 (2000).
  8. 18 U.S.C. §922(q).
  9. 514 U.S. at 551.
  10. 514 U.S. at 64; id. at 83 (Kennedy & O’Connor, JJ., concurring) (“The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term”).
  11. 529 U.S. at 607-19.
  12. New York v. United States, 505 U.S. 144, 188 (1992) (“The Federal Government may not compel the States to enact or administer a federal regulatory program”); Printz v. United States, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the states to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program”). This does not mean that the states are beyond federal regulation when they engage in interstate, or interstate-impacting, commercial activity. Reno v. Condon, 528 U.S. 141, 148-51 (2000).
  13. See New York v United States, 505 U.S. 144 (1992) (full-text).
  14. Printz v. United States, 521 U.S. 898, 935 (1997) (full-text).
  15. 100 U.S. 82 (1879).
  16. Id. at 93-94.
  17. Id. at 97.
  18. United States v. Lee, 173 F.3d 809, 810-11 (11th Cir. 1999) (18 U.S.C. §1955) (limiting proscriptions to gambling businesses provides the nexus to interstate commerce impact); United States v. Zizzo, 120 F.3d 1338, 1350 (7th Cir. 1997) (same); United States v. Wall, 92 F.3d 1444, 1449 (6th Cir. 1996) (same); United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001) (18 U.S.C. §§1955, 1962)(conduct of a commercial activity, a gambling business, precludes a successful Lopez challenge); United States v. Boyd, 149 F.3d 1062, 1065-66 (10th Cir. 1998) (18 U.S.C. §1955) (the statute regulates a commercial activity (gambling), comes with congressional findings concerning the activity’s impact on interstate commerce, and contains elements that weed out run of the mill, low level gambling cases — all factors absent in Lopez).

See also[]