Commerce Clause Essay

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Accordi ng to article 1, Section 8, Clause 3, the Commerce Clause of the U.S. Constitution, “The Congress shall have power… To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” There are essentially three different interpretations of this clause. First, there are those who claim that the clause gives Congress and the federal government the unique right to regulate all commerce. Another interpretation suggests that the clause also gives states the power to regulate commerce, a power that is only preempted in cases where state regulations contradict or preempt federal power. The third interpretation of this clause suggests that states and the federal government have different, sovereign zones of regulation. The federal government cannot violate the state zone or vice versa. The current interpretation of the Supreme Court evolved from a complicated combination of these different views argued in several cases. This interpretation basically limits the ability of states to regulate commerce in particular ways even as states and the U.S. Congress can regulate commerce in different zones concurrently.

For several key environmental laws, the Commerce Clause has been interpreted to extend federal authority over what might otherwise be separate state jurisdictions. Most prominently, the 1972 Clean Water Act is understood to be constitutionally sound insofar as the federal authority extends to waterways and wetlands via the clause. Recent petitions have been made to curtail the successes of the Clean Water Act by asserting that federal authority only extends to literally “navigable” waters (those suitable for use by commercial vessels) and only those wetlands and streams directly adjacent to waterways.

This clause has had a major impact on the ability of the federal government to enforce in-state environmental policy, leaving the states with the power to regulate beyond minimum federal standards. In some cases, however, the Supreme Court’s interpretation of the Commerce Clause has limited the ability of individual states to enforce environmental policy if this policy has an adverse consequence for interstate commerce. In Philadelphia vs. New Jersey (1976), the Supreme Court ruled against a New Jersey law prohibiting the importation of garbage into the state. The Court saw this as a discriminatory ban against commerce from another state. In Hughes vs. Oklahoma, 1979, the Court also struck down an Oklahoma law intended to preserve and protect fish by prohibiting the export of minnows across the state. The Court rejected the idea that states can own wildlife, making it not officially an article of commerce. In Maine v. Taylor, 1986, however, the Court ruled that Maine had the right to prevent the import of certain baitfish to prevent the introduction of parasites because no alternative to discrimination against other state commerce existed. Thus, in most cases, the demands of commerce were preserved over the environmental policies. As the law presently stands, states have the power to regulate and preserve their environmental resources; but they cannot do so at the expense of interstate commerce, unless there is no other alternative.


  1. Paul Benson, The Supreme Court and the Commerce Clause, 1937-1970 (New York, 1970);
  2. Robert Meltz, Constitutional Bounds on Congress’ Ability to Protect the Environment (New York, 2003);
  3. Joseph Zimmerman, Interstate Economic Relations (State University of New York Press, 2004).

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