Commerce Clause

The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the Commerce Clause referred to as "the Foreign Commerce Clause", "the Interstate Commerce Clause", and "the Indian Commerce Clause", each of which refers to a different application of the same sentence in the Constitution.

Dispute exists as to the range of powers granted to Congress by the Commerce Clause. As noted below, the clause is often paired with the Necessary and Proper Clause, the combination used to take a broad, expansive perspective of these powers. Many strict constructionists deny that this is the proper application of the Commerce Clause because it refers specifically to "the foregoing Powers".

Case law on the Commerce Clause has changed significantly since Bailey; the precedents set in United States v. Darby Lumber Co. (1941) (explicitly overturning 1918's Hammer v. Dagenhart) and 1942's Wickard v. Filburn may have an effect on the applicability of Bailey to the PPACA.


Hudson's opinion stressed the unprecedented nature of the mandate:

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market . . . At its core, the dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate."[14]