Article I, Section 8, Clause 3:
[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .
As is recounted below, prior to reconsideration of the federal commerce power in the 1930s, the Court in effect followed a doctrine of
dual federalism, under which Congress’s power to regulate much activity depended on whether it had a
direct rather than an
indirect effect on interstate commerce. 1 When the restrictive interpretation was swept away during and after the New Deal, the question of federalism limits respecting congressional regulation of private activities became moot. However, in a number of instances the states engaged in commercial activities that would be regulated by federal legislation if the enterprise were privately owned, and the Court easily sustained application of federal law to these state proprietary activities. 2 However, as Congress began to extend regulation to state governmental activities, the judicial response was inconsistent and wavering. 3 Although the Court may shift again to constrain federal power on federalism grounds, at the present time the rule is that Congress lacks authority under the Commerce Clause to regulate the states as states in some circumstances, namely, when the federal statutory provisions "commandeer" a state's legislative or executive authority in order to implement a regulatory program. 4