Legal Question in Constitutional Law in Ohio

This is not a personal question but instead a topical one concerning the implications of the federal government�s lawsuit against the State of Arizona over their recent immigration law. There is probably a simple obvious answer, at least I hope so since the implications seem pretty scary.

As I understand it, one of the central assertions that the federal government is making is that the U.S. Constitution grants Congress exclusive power to regulate �Naturalization� or, as the rest of us think about it �immigration�. Since the Commerce clause is defined in the same article/section in nearly the same way and if the exclusivity prevails in the case of immigration, wouldn�t that mean that Congress also has the exclusive power to regulate commerce? If Congress has the exclusive power to regulate commerce, doesn�t that mean that state and local governments are prohibited from regulating commercial activities? Doesn�t that mean that state and local governments have no authority to license, regulate or levy taxes on commercial activity, require bonding or insurance, or enforce health, safety or consumer protections? Wouldn�t that even mean that traffic laws are void since they have the potential to effect commercial activity on roads and highways?


Asked on 5/10/11, 12:42 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Article I, section 8 of the Constitution gives congress exclusive authority to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". The key language for your question is "among the several states". That means interstate commerce, not intrastate commerce. States can regulate commercial activity that occurs entirely within their borders.

As you note, relatively little commerce is truly local. Congress's authority under the commerce clause is thus very broad, but it is not as broad as you describe. It does have limits. Those limits are not well-defined, though, and they are often the subject of important decisions by the Supreme Court and the various circuit courts of appeal.

States do have "police power", which means the authority to enact laws for the general welfare and not just to operate police departments. Some of the laws you describe -- traffic laws, for example -- are within the states' police power. But the state's police power sometimes comes into conflict with the federal government's commerce-clause power. Such conflicts must usually be resolved by the courts.

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Answered on 5/11/11, 1:01 pm


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