Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Prior to the 1930s, the Court had effectively followed a doctrine of “dual federalism,” under which Congress’s power to regulate activity largely depended on whether the activity had a “direct” rather than an “indirect” effect on interstate commerce.1 When the Court adopted a less restrictive interpretation of the Commerce Clause during and after the New Deal, the question of how concerns over federalism might impact congressional regulation of private activities became moot. However, in a number of instances, the states themselves engaged in commercial activities, which would have been subject to federal legislation if a privately owned enterprise had engaged in the activity. Consequently, the Court sustained applying federal law to these state proprietary activities.2 As Congress began to extend regulation to state governmental activities, the judicial response was inconsistent.3 Although the Court may revisit constraining federal power on federalism grounds, Congress lacks authority under the Commerce Clause to regulate states when federal statutory provisions would “commandeer” a state’s legislative or executive authority to implement a federal regulatory program.4

Footnotes

1

E.g., United States v. E. C. Knight Co., 156 U.S. 1 (1895); Hammer v. Dagenhart, 247 U.S. 251 (1918). Of course, for much of this time there existed a parallel doctrine under which federal power was not so limited. E.g., Houston & Tex. Ry. v. United States (The Shreveport Rate Case), 234 U.S. 342 (1914).

2

E.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor, 353 U.S. 553 (1957).

3

For example, federal regulation of the wages and hours of certain state and local governmental employees has alternatively been upheld and invalidated. See Maryland v. Wirtz, 392 U.S. 183 (1968), overruled in Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), overruled in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

4

New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). For elaboration, see the discussions under the Supremacy Clause and under the Tenth Amendment.