Meaning of Among the Several States in the Commerce Clause

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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; . . .

The Supreme Court has interpreted the phrase “among the several states” to exclude transactions that occur wholly within a state. In Gibbons v. Ogden, Chief Justice John Marshall observed that the phrase “among the several States” was “not one which would probably have been selected to indicate the completely interior traffic of a state.” 1 He noted that although the phrase “may very properly be restricted to that commerce which concerns more states than one,” 2 “[c]ommerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior.” 3 Identifying transactions covered by the Commerce Clause, he stated:

The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.4

Subsequent to Gibbons, the Court held in a number of cases that Congress’s Commerce Clause power did not extend to commerce that was “exclusively internal” to a state.5 In these nineteenth and early twentieth century cases, the Court seemingly tied Congress’s interstate commerce power to cross-border transactions notwithstanding Marshall’s Gibbons reasoning that Congress’s Commerce Clause power could extend to intrastate commerce that affects other states or implicates congressional power.6 In its 1905 Swift & Co. v. United States decision, the Court revisited Marshall’s expansive reading of the Commerce Clause to reason that, in a current of commerce, each element was within Congress’s Commerce Clause power.7 Looking at the interrelationship of industrial production to interstate commerce,8 the Court noted that the cumulative impact9 of minor transactions can impact interstate commerce.10

1: Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824).
2: Id. at 194.
3: Id.
4: 22 U.S. (9 Wheat.) 1, 194–195 (1824).
5: New York v. Miln, 36 U.S. (11 Pet.) 102 (1837); License Cases, 46 U.S. (5 How.) 504 (1847); Passenger Cases, 48 U.S. (7 How.) 283 (1849); Patterson v. Kentucky, 97 U.S. 501 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd v. Pearson, 128 U.S. 1 (1888); Ill. Cent. R.R. v. McKendree, 203 U.S. 514 (1906); Keller v. United States, 213 U.S. 138 (1909); Hammer v. Dagenhart, 247 U.S. 251 (1918); Oliver Iron Co. v. Lord, 262 U.S. 172 (1923).
6: Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194–195 (1824). Marshall stated: “Commerce among the states must, of necessity, be commerce with[in] the states. The power of congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states.” Id. at 196. Commerce “among the several States,” however, does not comprise commerce of the District of Columbia or the territories of the United States. Congress’s power over their commerce is an incident of its general power over them. Stoutenburgh v. Hennick, 129 U.S. 141 (1889); Atl. Cleaners & Dyers v. United States, 286 U.S. 427 (1932); In re Bryant, 4 F. Cas. 514 ( No. 2067) (D. Oreg. 1865). The Court has held transportation between two points in the same state to be interstate commerce when a part of the route is a loop outside the state. Hanley v. Kan. City S. Ry., 187 U.S. 617 (1903); W. Union Tel. Co. v. Speight, 254 U.S. 17 (1920). But such a deviation cannot be solely for the purpose of evading a tax or regulation in order to be exempt from the state’s reach. Greyhound Lines v. Mealey, 334 U.S. 653, 660 (1948); Eichholz v. Pub. Serv. Comm’n, 306 U.S. 268, 274 (1939). Red cap services performed at a transfer point within the state of departure but in conjunction with an interstate trip are reachable. New York, N.H. & H. R.R. v. Nothnagle, 346 U.S. 128 (1953).
7: Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258 U.S. 495 (1922); Chi. Bd. of Trade v. Olsen, 262 U.S. 1 (1923).
8: NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
9: United States v. Darby, 312 U.S. 100 (1941); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Maryland v. Wirtz, 392 U.S. 183 (1968); Perez v. United States, 402 U.S. 146 (1971); Russell v. United States, 471 U.S. 858 (1985); Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).
10: NLRB v. Fainblatt, 306 U.S. 601 (1939); Kirschbaum v. Walling, 316 U.S. 517 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); Wickard v. Filburn, 317 U.S. 111 (1942); NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963); Katzenbach v. McClung, 379 U.S. 294 (1964); Maryland v. Wirtz, 392 U.S. 183 (1968); McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 241–243 (1980); Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981).