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; . . .

In United States v. Lopez, the Court identified “instrumentalities of interstate commerce, or persons or things in interstate commerce” as being subject to Congress’s Commerce Clause power.1 Consequently, Congress has authority to regulate persons or objects in interstate commerce and the instrumentalities2 of interstate commerce. Regulation under this category is not limited to persons or objects crossing state lines but may extend to objects or persons that have or will cross state lines. Thus, for example, the Court has upheld federal laws that penalized convicted felons for possessing or receiving firearms that had been previously transported in interstate commerce, independent of any activity by the felons, with no other connection between the felons’ conduct and interstate commerce.3

In United States v. Sullivan, the Court sustained a conviction for misbranding under the Federal Food, Drug and Cosmetic Act.4 Sullivan, a pharmacist in Columbus, Georgia, had bought a properly labeled 1,000-tablet bottle of sulfathiazole from an Atlanta wholesaler. The bottle had been shipped to the Atlanta wholesaler by a Chicago supplier six months earlier. Three months after Sullivan received the bottle, he made two retail sales of 12 tablets each, placing the tablets in boxes not labeled in strict accordance with the law. Upholding the conviction, the Court concluded that there was no question of “the constitutional power of Congress under the Commerce Clause to regulate the branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce.” 5

Footnotes

1

United States v. Lopez, 514 U.S. 549, 558–59 (1995) (citations omitted).

2

Black’s Law Dictionary defines instrumentality to mean “a thing used to achieve an end or purpose.” For example, the Supreme Court used the example of a law prohibiting the destruction of an aircraft as a regulation of instrumentalities of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971) (citing 18 U.S.C. § 32).

3

Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212 (1976). However, because such laws reach far into the traditional police powers of the states, the Court insists Congress clearly speak to its intent to cover such local activities. United States v. Bass, 404 U.S. 336 (1971). See also Rewis v. United States, 401 U.S. 808 (1971); United States v. Enmons, 410 U.S. 396 (1973). A similar tenet of construction has appeared in the Court’s recent treatment of federal prosecutions of state officers for official corruption under criminal laws of general applicability. E.g., McDonnell v. United States, 579 U.S. 550, 576–77 (2016) (narrowly interpreting the term “official act” to avoid a construction of the Hobbs Act and federal honest-services fraud statute that would “raise[ ] significant federalism concerns” by intruding on a state’s “prerogative to regulate the permissible scope of interactions between state officials and their constituents.” ); McCormick v. United States, 500 U.S. 257 (1991); McNally v. United States, 483 U.S. 350 (1987).

4

332 U.S. 689 (1948).

5

Id. at 698–99.