Article 1, Section 8, Clause 3 — Criminal Law And 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; . . .

Federal criminal jurisdiction based on the commerce or postal power has historically been an auxiliary criminal jurisdiction. That is, Congress has made federal crimes of acts that would usually constitute state crimes but for some contact, however tangential, with a matter subject to congressional regulation even though the federal interest in the acts may be minimal.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn1art1 " E.g., Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); Lewis v. United States, 445 U.S. 55 (1980); McElroy v. United States, 455 U.S. 642 (1982). ") Early examples of this type of federal criminal statute include the Mann Act of 1910, which outlawed transporting a woman or girl across state lines for purposes of prostitution, debauchery, or other immoral acts,[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn2art1 " 18 U.S.C. § 2421. ") the Dyer Act of 1919, which criminalized interstate transportation of stolen automobiles,[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn3art1 " 18 U.S.C. § 2312. ") and the Lindbergh Law of 1932, which made transporting a kidnapped person across state lines a federal crime.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn4art1 " 18 U.S.C. § 1201. ") Congress subsequently expanded federal criminal law beyond prohibiting use of interstate facilities in the commission of a crime. Typical of this expansion is a statute making it a federal offense to “in any way or degree obstruct . . . delay . . . or affect . . . commerce . . . by robbery or extortion.” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn5art1 " 18 U.S.C. § 1951. See also id. § 1952. ") But Congress’s authority to make crimes federal offenses is not unlimited. In its 1821 Cohens v. Virginia decision, the Court held that “Congress cannot punish felonies generally” and may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the commerce power.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn6art1 " See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821). ") As a consequence, most federal offenses include a jurisdictional element that ties the underlying offense to one of Congress’s constitutional powers.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/criminal-law-and-commerce-clause#fn7art1 " See Luna Torres v. Lynch, 578 U.S. 452, 457 (2016). ")

Footnotes

1

E.g., Barrett v. United States, 423 U.S. 212 (1976) ; Scarborough v. United States, 431 U.S. 563 (1977) ; Lewis v. United States, 445 U.S. 55 (1980) ; McElroy v. United States, 455 U.S. 642 (1982) .

2

18 U.S.C. § 2421.

3

18 U.S.C. § 2312.

4

18 U.S.C. § 1201.

5

18 U.S.C. § 1951. See also id. § 1952.

6

See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 , 428 (1821).

7

See Luna Torres v. Lynch, 578 U.S. 452 , 457 (2016).