The Commerce Clause From Expansion To Extortion

Abstract

The Commerce Clause of the United States Constitution gave the federal government power over foreign trade, trade with the Indian tribes and trade “among several states.” By lack of further enumeration and the passage of the Tenth Amendment to the Constitution, it would be reasonable to conclude that commerce that is truly intrastate would, therefore, be within the regulatory province of the states. In fact, that was the interpretation initially reached and subsequently followed by the United States Supreme Court. But in 1942, that changed and, over the course of the following 60+ years, to date the Court has concluded, by an expansive interpretation of that federal power granted, that Congress and the federal government have virtually unbridled power to regulate not only those areas that would traditionally be considered “commerce” or “interstate commerce”, but, moreover, in areas that seemingly have nothing to do with commerce, interstate, or otherwise. This paper will trace the journey that the justices have taken down this judicial interstate highway and the methods that the federal government has employed to achieve its objectives. Hence, the subtitle of this paper: From Expansion to Extortion.