D. Commerce Power

Congress may regulate commerce and transportation. This authority extends to activity between the several States and with foreign nations. It does not extend to any restriction or impediment of the President’s foreign policy prerogatives.

The Constitution of 1789 vested Congress with the power to regulate interstate commerce.[1] I’ve discussed the historical deformation of that power already. This Charter splits the commerce power into two components, which are discussed separately. As I noted earlier, “interstate commerce” has come to mean almost any activity involving more than one state that eventually involves commerce. But non-economic activity is now more appropriately dealt with under Material Interstate Legislation in this Charter, and we have already discussed it.[2] This subsection deals with actual commerce and transportation. Specifically, it grants Congress the power to regulate commerce and transportation between states and between the United States and other nations.

There are two limitations, one implicit and one explicit. As far as the implicit limitation, it is essential to note that this subsection respects federalism. It does not confer the authority to regulate any commerce or transportation that happens wholly within a single state. The explicit limitation is that it does not allow Congress to limit or interfere in the President’s powers of foreign policy.[3] Taken together with the Material Interstate Legislation power, this subsection returns the original commerce clause to its proper scope.

D.1. Definition of Commerce

D.2. Limt on Commerce Power

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[1] U.S. Const. art. I, sect. 8, cl. 3.

[2] See Article II, Section 4.A.2.

[3] See Article III, Section 2.A.2.