The Commerce Clause

Questions testing the Commerce Clause on the MBE are quite common. The Commerce Clause provides an avenue for Congress to pass regulations but it's important not only to understand the power granted to Congress but the limitations as to that power as well. Congress can pass laws that regulate interstate commerce provided the laws regulate the channels of interstate commerce, or the instrumentalities of interstate commerce. In addition the Commerce Clause stretches even further by allowing Congress the power to pass laws that regulate activities that have a substantial effect on interstate commerce.

When the activity that is the subject of the regulation is intrastate (does not cross state lines) rather than interstate (crosses state lines), any regulation by Congress attempting to regulate such activity will be upheld only if the activity is deemed economic or commercial, and there is a rational basis for concluding that the activity will have a substantial effect on interstate commerce. Stated otherwise, if the activity is noncommercial and intrastate, the Commerce Clause is unlikely to provide an appropriate avenue for Congress to regulate that activity.

And even if Congress has not passed a law regulating interstate commerce, a state law that discriminates or unduly burdens interstate commerce will likely be held in violation of the Commerce Clause. This is often called the Dormant Commerce Clause, and it limits the state's ability to pass laws discriminating against interstate commerce, even if Congress has passed no conflicting law, unless the law furthers an important non-economic state interest and there are no reasonable nondiscriminatory alternatives, the state is acting as a market participant, or the law involves government action regarding the performance of a traditional state-government function. Note that if a non-conflicting state law does not discriminate against interstate commerce, it may still be a violation of the Commerce Clause (as per the Dormant Commerce Clause) if the law burdens interstate commerce, and the state's interest in passing the law does not outweigh that burden.