Question

the key question is how does the power to regulate interstate commerce affect the kinds of legislation that Congress can pass? Would any of the great Civil Rights bills, environmental bills (Clean Air and Water), regulation of employment (FLSA, Title VII, OSHA) been possible without the commerce clause standing behind the authority of Congress to regulate?

Answer 1

Answer:-

the key question is how does the power to regulate interstate commerce affect the kinds of legislation that Congress can pass?

Well, I am a Constitutional Libertarian so I think that the commerce clause was perhaps the biggest mistake of the near perfect US constitution (references to slavery were the worst part but got amended in 1865). This clause has been used to justify millions of regulations that otherwise would have been contrary to the limitations established by the rest of the constitution.

In the matter of regulating commerce with foreign nations, the supremacy as well as the exclusivity of the federal government is generally understood. From time to time state or local authorities have attempted to deal in foreign policy matters considered exclusively the province of the federal government, but their efforts have invariably been struck down by the courts. Although the states do have some limited powers to tax foreign commerce, it may generally be said that in dealings with foreign states, the federal government is the sole agent of all the people of the United States.

The term commerce, which is not defined in the commerce clause (or anywhere else in the Constitution), has been variously interpreted by the courts. In 1824 Chief Justice John Marshall declared, in Gibbons v. Ogden, that “commerce” encompasses not merely “traffic”—“buying and selling, or the interchange of commodities”—but also all forms of commercial “intercourse,” including (in the case at hand) navigation. Moreover, such commerce may (indeed, must) extend into the interior of the states engaged in it, though it may not be “completely internal” to a state—i.e., neither “extend[ing] to” nor “affect[ing] other States.” In Cooley v. Board of Wardens of Port of Philadelphia (1851), the Supreme Court agreed with the state of Pennsylvania that it had the right, under an act of Congress in 1789, to regulate matters concerning pilots on its waterways, including the port of Philadelphia. The court held that Congress had never intended to deprive the states of all power to regulate commerce. Specifically, where the commerce is not such as to require uniform regulation throughout the country and no relevant federal regulation exists, the states retain the power to regulate it until Congress, at a later date, enacts further legislation to restrict them.

commerce clause standing behind the authority of Congress to regulate?

The Commerce Clause of the United States Constitution provides that the Congress shall have the power to regulate interstate and foreign commerce. The plain meaning of this language might indicate a limited power to regulate commercial trade between persons in one state and persons outside of that state. However, the Commerce Clause has never been construed quite so narrowly. Rather, the clause, along with the economy of the United States, has grown and become more complex. In addition, when Congress began to address national social problems, the Commerce Clause was often cited as the constitutional basis for such legislation. As a result, the Commerce Clause has become the constitutional basis for a significant portion of the laws passed by Congress over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers.

An examination of the United States Code shows that more than 700 statutory provisions, covering a range of issues, are explicitly based on regulation of either "interstate" or "foreign" commerce. Over the last two decades, however, the Supreme Court in United States v. Lopez and United States v. Morrison held that a gun possession law and a law regarding sexual violence were, respectively, beyond Congress's authority to regulate commerce. The effect of these cases, however, has so far been relatively modest in scope. For instance, a later case, Gonzales v. Raich, confirmed the authority of Congress to regulate medical marijuana, suggesting that the effect of the prior cases will be limited. Yet, in the case of National Federation of Business v. Sebelius, considering a challenge to an individual mandate to buy health insurance, the Court found that the Commerce Clause did not provide authority for such mandate. In Sebelius, the Court limited the use of the Commerce Clause to instances where individuals have already chosen to engage in a commercial activity (although it did find that such mandate could be enforced under Congress's power to tax).

he Commerce Clause provides that "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The word "commerce" appears to have the same primary meaning today as it did in 1789—"an interchange of goods or commodities between different countries or between areas of the same country" or in other words "trade." However, commentators have argued that a secondary meaning of commerce which was understood at the time of the drafting of the Constitution includes all productive activity which relates to commerce, such as manufacturing and agriculture.

A further question is then raised whether Congress's power to regulate commerce is significantly limited by the phrase "with foreign Nations, and among the several states, and with the Indian Tribes." For instance, the phrase "among the several States" could either be interpreted as "between people of different states" or more broadly as "between people who live in the various states." Some have argued that the broader definition, which would cover commerce between people of the same state, would render the phrase "among the several States" superfluous. This question, generally characterized as whether the power to regulate "interstate commerce" extends to "intrastate" commerce, has been mostly settled by case law, and most "intrastate" commercial transactions are vulnerable to some form of federal regulation.