Article I, Section 8, Clause 3 — Meaning of Regulate in the Commerce Clause

ArtI.S8.C3.4 Meaning of Regulate in the Commerce Clause

The Court has interpreted “regulate” in the Commerce Clause as Congress’s power to prescribe conditions and rules for commercial transactions, keep channels of commerce open, and regulate prices and terms of sale. In Gibbons v. Ogden, Chief Justice John Marshall discussed Congress’s authority to “regulate,” stating:

It is the power to regulate; that is, to prescribe the rule by which commerce is to be

governed. This power, like all others vested in congress, is complete in itself, may be

exercised to its utmost extent, and acknowledges no limitations, other than are

prescribed in the constitution . . . If, as has always been understood, the sovereignty of

congress, though limited to specified objects, is plenary as to those objects, the power

over commerce with foreign nations, and among the several states, is vested in

Congress as absolutely as it would be in a single government, having in its constitution

the same restrictions on the exercise of the power as are found in the constitution of the

United States.¹

Similarly, in Brooks v. United States, the Court explained “regulate,” observing:

Congress can certainly regulate interstate commerce to the extent of forbidding and

punishing the use of such commerce as an agency to promote immorality, dishonesty, or

the spread of any evil or harm to the people of other states from the state of origin. In

doing this, it is merely exercising the police power, for the benefit of the public, within

the field of interstate commerce.²

In upholding a federal statute prohibiting shipping goods made with child labor in interstate commerce in order to extirpate child labor rather than bar intrinsically harmful goods, the Court said: “It is no objection to the assertion of the power to regulate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.”³ Congress has also used its Commerce Clause power to enforce moral codes,⁴ to ban racial discrimination in public accommodations,⁵ and to protect the public from danger.⁶ Consequently, Congress’s power to regulate interstate commerce is among its most potent Article I, Section 8 powers.