Last month, I wrote that while Article I, Section 8, Clause 3 of our Constitution, known as the Commerce Clause, is one of the shortest clauses, its impact is much more prevalent than most. It is so important and has been adjudicated so often that I was only able to discuss the first few words.
The entire clause states, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It required an entire article just to determine what “regulate commerce” meant, which leaves this month to discuss the rest. As readers have probably come to expect, it is not as straightforward as it might seem.
To understand this clause, we must know a bit about our nation’s first government under the Articles of Confederation. Under this set of rules, states were basically sovereign and were allowed to impose tariffs on other states. During the Constitutional Convention, James Madison argued that separate state regulations of trade increased tensions between states. He said in his notes that it led to “rival, conflicting, and angry regulations.” For that purpose, the Constitution gave the federal government the power to regulate commerce.
Yet what is unclear is how much regulatory power the Constitution intended. While there never has been a question about the federal government’s complete power over commerce from foreign powers — that is, absolute — many felt that that was not the case with the states. It was argued that the clause was written to give freedom of trade between the states but not to impede or restrict states themselves. In other words, states could not restrict free trade but were free to do what they liked within their states.
The best example to understand the power of Congress over foreign commerce is to look at the case of the United States v. The William (1808).
The setup for this case was the Napoleonic Wars between France and England. During the conflict, President Thomas Jefferson attempted to remain neutral so as to trade with both sides. Neutrality benefited the U.S., but the two warring nations did not seem to care as they tried to stop their enemy from receiving supplies. Jefferson attempted to get both nations to respect our neutrality and, really, our existence by threatening to cut off trade. When the two nations ignored our demands and threats, Congress passed the Embargo Act of 1807.
Not everyone was happy with Jefferson’s decisions. Opponents of the Act argued that “to regulate” meant to protect and preserve commerce, not to “annihilate” or destroy it. They contended that a total ban on trade was an unconstitutional overreach of federal power. When the ship The William was seized for violating the Act, the case made it to the Supreme Court. The Court’s decision was that Congress’ power over foreign commerce was sovereign and could not only regulate commerce but shut it down as well.
The Embargo Act demonstrated that the clause allows Congress to use commerce as a “bargaining chip” or as an instrument of foreign policy. It proved that congressional authority could be exercised for “other purposes than the mere advancement of commerce,” such as national security or diplomacy.
We have seen this tactic used several times during the Trump presidency, critics have pointed out that the Commerce Clause gives this power to Congress, not the president.
Finally, a part of the clause that is interesting for Oklahoma is the last few words, “and with the Indian Tribes,” meaning it treats Native tribes as a distinct category, separate from states and foreign countries. Historically, the tribes have been seen as sovereign but with limits. Both Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) described tribes as domestic dependent nations, not states, but not just private groups either. What this means is that the federal government — not the states — has authority over the tribes, especially in regard to commerce.
Today, while the tribes retain inherent sovereignty, states can act if authorized by Congress in areas like taxation. So what we see in Oklahoma is a three-way tug-of-war between federal, state, and tribal governments when it comes to Native Americans. The McGirt case has only seemed to confuse the issue more than clarify, and we are seeing several disputes between the tribes and Governor Stitt. However, the courts decide these issues, I’m certain that the Commerce Clause will play a major role in the outcome.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
