Commerce Clause




The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

[Clause 3] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

The most recent review of Congress’ Commerce Clause power is in the 2012 U.S. Supreme Cort opinion National Federation of Independent Business v. Sebelius, also known as the Affordable Care Act or “Obamacare” case. Links to the major components of this nearly 200-page Supreme Court opinion appear at the end of this article. But first, a brief history of the Commerce Clause.

The U.S. Constitution specifies which powers are given to the federal government, and the Tenth Amendment gives control of all remaining powers to the states.

Think of the Commerce Clause as a way for Congress to enact a federal law, arguing that the subject of the law is something that affects citizens across state lines, or internationally.

Congress’ power to enact laws under the Commerce Clause was challenged in the Supreme Court following the Great Depression. A number of Franklin Delano Roosevelt’s Acts under his New Deal plan to lead the country out of economic ruin were challenged in the mid-1930’s. The Court initially ruled that New Deal Acts were unconstitutional. However, following President Roosevelt re-election, the Court broadened its interpretation of the Commerce Clause and began upholding New Deal Acts.

The Court again faces an historic challenge in reviewing the Patient Protection and Affordable Care Act, commonly referred to in the media as Obamacare. A number of cases have been filed challenging the 2010 law’s (or portions thereof) constitutionality. A summary docket of the cases has been published by the Court. Three days of oral arguments in Department of Health and Human Servs. v. Florida, Docket #11-398, began on Monday March 26, 2012.

The Court published its opinion in National Federation of Independent Business v. Kathleen Sebelius, Secretary of Health and Human Services, et. al., 567 U.S. ___ (2012) on June 28, 2012. The opinion can be broken into five parts: The Syllabus; The judgment and opinion of the Court, authored by Chief Justice Roberts, consisting of 59 pages; the concurring opinion authored by Justice Ginsburg, 61 pages in length; the dissenting opinion by Justices Scalia, Kennedy, Thomas and Alito at 65 pages; and a short, separate dissent by Justice Thomas. has published NFIB v. Sebelius in its five component parts, allowing it to be more easily followed.

In the weeks leading up to the Court’s announcement of its opinion, it was widely expected that NFIB v. Sebelius would be decided in context with the Commerce Clause. Chief Justice Roberts surprised everyone with his opinion that Congress, in enacting the ACA, exceeded its power under the Commerce Clause. One major news network rushed its headline, that the ACA had been struck down, only to correct itself minutes later. Chief Justice Roberts went on, in his opinion, to rationalize that the minimum-coverage provision of the Act is appropriate under Congress’ power to tax.

Meanwhile, Justice Ginsburg joined by Justices Sotomayor, Breyer and Kagan (the latter two justices concurring in part and dissenting in part), joined Chief Justice Roberts in the judgment, so the Affordable Care Act was upheld on a 5-4 vote. Their concurring opinion is arguably the most interesting read, because these four justices would have upheld the ACA as an appropriate exercise of Congress’ Commerce Clause power. You can’t miss their criticism of the Chief Justice’s opinion, throughout their concurring opinion. has published National Federation of Independent Business v. Kathleen Sebelius in a manner so that its appearance on the Internet closely mimicks its appearance initially as a slip opinion, and ultimately its appearance in the United States Reports. You can read NFIB v. Sebelius at the following links:

Majority opinion by Chief Justice Roberts

Concurring opinion by Justices Ginsburg, Sotomayor, Breyer and Kagan

Dissenting opinion by Justices Scalia, Kennedy, Thomas and Alito

Dissenting opinion by Justice Thomas

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