Will the Supreme Court Stretch the Commerce Clause Even More?

Will the Supreme Court Stretch the Commerce Clause Even More?
The Supreme Court is seen on Capitol Hill in Washington on July 14, 2022. (J. Scott Applewhite/AP Photo)
Rob Natelson
As you may know, the primary “constitutional” justification for our out-of-control administrative state is a grossly bloated version of the Constitution’s commerce power. In a case pending before the Supreme Court, apologists for centralized authority want the justices to expand that power even more.
I have just researched and written a scholarly article (pdf) explaining the limits on the commerce power. In a separate post and accompanying memo (pdf), I’ve shown how one writer has abused source material to promote federal pretentions.
The public debates over the Constitution were held from 1787 to 1790. During those debates, some Americans warned that, once the Constitution was in place, power-hungry federal officials and their supporters would twist the document out of recognition—that they would use “sophistry” to expand federal prerogatives. Sophistry is employing arguments that sound reasonable but really are false or misleading.

The Scope of the Commerce Clause

Congress’s “commerce power” derives primarily from two constitutional provisions: The commerce clause (Article I, Section 8, Clause 3) and the necessary and proper clause (Article I, Section 8, Clause 18).

The commerce clause grants Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” When the Constitution was written, the phrase “regulate Commerce” had a specific and understood meaning.

“Regulate Commerce” was interchangeable with the phrase “regulate trade.” (You can see examples of this interchangeably in James Madison’s Federalist No. 42, which focuses on the commerce clause.) Both terms were synonyms for applying the law merchant—a body of rules governing certain economic activities when they cut across political boundaries. The law merchant covered a lot of ground. It included:
  • bankruptcy;
  • licensing and qualifications of trade professionals;
  • cargo insurance;
  • commercial paper (such as checks and promissory notes);
  • prices and quality of goods;
  • limits on imports and exports;
  • navigation and some aspects of ground transportation;
  • certain financial levies on traded items (“duties” and prohibitive tariffs); and
  • some economic crimes.
Notice how all these are economic activities. Reinforcing the economic meaning is the Constitution’s port preference clause (Article I, Section 9, Clause 6), which speaks of the “Regulation of Commerce” in the context of trade and navigation.
The law merchant was broad but did have limits. It didn’t govern non-economic activities, such as crimes of passion or relations within families. Nor did it govern manufacturing, mining, agriculture, health insurance, or commerce wholly within state boundaries. The Constitution’s 10th Amendment reserves those subjects for state governance.

The Meaning of the Necessary and Proper Clause

In a previous Epoch Times essay, I explained the meaning of the Constitution’s necessary and proper clause. That provision clarified that, when carrying out its listed powers, Congress could regulate some “incidental” activities. But as several leading Founders emphasized (including Alexander Hamilton in The Federalist No. 33), the necessary and proper clause didn’t extend Congress’s authority. It was merely a clarification.
And to make sure everyone understood this, some of the Constitution’s leading supporters published lists of activities the federal government couldn’t control (pdf). One of these was family law.
In a 2012 Supreme Court decision (pdf), Chief Justice John Roberts confirmed that the necessary and proper clause doesn’t grant any power, but merely clarifies the scope of the powers that are granted.

New Deal Supreme Court Stretches Commerce Power

But decades before Roberts wrote, the Supreme Court already had stretched the Constitution’s commerce power beyond recognition. I explained how this happened in an essay in my Epoch Times series “How the Supreme Court Rewrote the Constitution”: During the late 1930s and early 1940s, justices eager to accommodate President Franklin Roosevelt’s New Deal expanded the meaning of “Commerce” to include all kinds of insurance and used the necessary and proper clause to allow Congress to regulate “any economic activity that substantially affects commerce.”
The effect of these decisions was to let Congress dictate to almost the entire U.S. economy—even small, local businesses. Still, the Supreme Court has retained some limits: It affirms that Congress may not use the commerce power to intrude on noneconomic activities, such as personal family relationships.

The Indian Child Welfare Act

Congress doesn’t care about those limits. In 1978, it passed the Indian Child Welfare Act (ICWA), which invades state jurisdiction over child placement and adoption.
The ICWA’s opponents assert that Congress’s phrase “Child Welfare” is Orwellian, because the ICWA hurts children more than it helps. However, the cases now before the Supreme Court won’t consider whether the ICWA is good or bad; the court will consider only whether it’s constitutional.
The argument of Congress and its defenders is that the ICWA is authorized by the part of the commerce clause lawyers call the Indian commerce clause—the portion that grants Congress authority to “regulate Commerce ... with the Indian Tribes.” They claim that when the word “commerce” is applied to Native Americans, it magically balloons in scope, allowing Congress to regulate just about anything.

How Sophistry Works

As my new article shows, many of their arguments are pure sophistry. To supplement the article, I’ve written a separate posting and an accompanying memorandum (pdf). Here are some principal points:

First: Supporters of the ICWA contend that when the Constitution was written, “commerce with the Indians” included all relationships between European Americans and Native Americans, not just economic ones. When you track down their historical sources, you find that those sources don’t support that contention.

Second: Supporters of the ICWA argue that because the Constitution’s framers added “and with the Indian Tribes” to the commerce clause later than “with foreign Nations, and among the several States,” the meaning of “regulate Commerce” somehow changed. As any competent lawyer knows, however, the order of drafting in a closed convention doesn’t affect the meaning of a document to outsiders, such as the Constitution’s ratifiers—and, frankly, it wouldn’t have changed the meaning even if the ratifiers had known about it.

Third: Supporters of the ICWA assert that they’re considering all evidence as a whole, and not just the text of the commerce clause in isolation. But they disregard the law merchant, 18th-century laws regulating Indian commerce, the port preference clause, and that the Constitutional Convention considered—and rejected—a proposal to give Congress absolute authority over Indian “affairs.” Instead, the finished Constitution split Indian affairs authority among several branches of government: an example of separation of powers.

Fourth: Supporters of the ICWA cite (out of context) the warnings of a single opponent to the Constitution, while ignoring statements by many supporters of the Constitution.

Finally: Supporters of the ICWA defame President George Washington and other early state and federal officials. Specifically, they edit official statements to make it seem like Washington & Co. were stretching the Indian commerce clause. Instead, they were relying on other sources of authority.


The Constitution is a legal document, so good faith disagreements about its meaning are inevitable. We have courts to adjudicate those disagreements.

But sophistry should have no place in constitutional interpretation. It misinforms Americans about their Constitution, subverts the system of justice, and damages faith in constitutional government.

And as for the ICWA: It’s ‘way unconstitutional.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”
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