Commerce Clause Federal vs State Power
The Commerce Clause grants Congress broad power to regulate interstate commerce, but its limits—and how states may regulate in Congress's absence—remain heavily tested in constitutional law. Mastering the post-Lopez framework, the dormant Commerce Clause doctrine, and preemption is essential for 1L students and MBE bar exam takers covering federal-state power allocation.
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5 CardsDiscriminatory state law Commerce Clause test
When does federal law preempt state law?
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What are the limits of Congress's Commerce Clause power after Lopez?
After Lopez and Morrison, Congress cannot regulate non-economic activities that merely have an indirect effect on commerce. The regulated activity must itself be economic or substantially affect interstate commerce as a class—not just in the aggregate of individual cases.
What is the difference between the Commerce Clause and the dormant Commerce Clause?
The Commerce Clause is an affirmative grant of power to Congress. The dormant Commerce Clause is its negative implication—states cannot discriminate against or unduly burden interstate commerce even when Congress has not acted.
- Commerce Clause: what Congress can do
- Dormant Commerce Clause: what states cannot do
How does preemption work under the Supremacy Clause?
When federal and state law conflict, federal law controls under the Supremacy Clause. Preemption can be express (Congress says so), conflict (impossible to comply with both), or field (federal regulation so comprehensive states are excluded from the area).