Tribes, Nations, States: Our Three Commerce Powers
55 Pages Posted: 12 Oct 2020 Last revised: 25 Sep 2022
Date Written: August 22, 2020
The scope of federal power is sometimes seen as a long-running battle between two stories. Story One sees the commerce power as initially broad, mistakenly contracted in the late nineteenth century, then properly restored in 1937 as the national power to deal with national problems. Story Two sees 1937 as the mistake, and the commerce power as properly read to be limited.
The truth is more complicated. Story Two is partly right: the interstate commerce power—the power to regulate “commerce among the several states”—is limited to the transportation and sale of goods from one state into another. Local agriculture, mining, and manufacturing lie outside it. But Story One is also partly right. The foreign and tribal commerce powers to regulate “commerce with foreign Nations” and “commerce with the Indian Tribes” are much broader than the interstate-commerce power. Wherever citizens of France or members of the Cherokee Nation travel in America, all of their commercial transactions with American citizens, however local or small-scale—purchasing a single cup of coffee, renting an apartment, or making a contract as part of practicing a profession—lie within federal power.
Restoring this distinction among the three commerce powers solves several problems in constitutional law:
(1) It allows the abandonment of the textually-untethered, Tenth-Amendment-flouting “plenary power” over foreign affairs and tribes.
(2) It justifies federal protection of tribal members in the Indian Child Welfare Act, challenged in Brackeen v. Haaland.
(3) It allows Fourteenth Amendment protection of equality and civil liberty to shift back to the Privileges or Immunities Clause, limiting constitutional protection for non-citizens to “process of law” and “protection of the laws,” but supporting Congress’s 1870 and 1986 prohibitions on discrimination against non-citizens.
(4) It explains three gaps in antidiscrimination law: federal citizenship classifications, racial tribal classifications, and state reservations of certain governmental functions to citizens.
Keywords: foreign commerce power, tribal commerce power, interstate commerce power, immigration, Indian Child Welfare Act, Civil Rights Act of 1870, Fourteenth Amendment, non-citizens, land ownership, William Winslow Crosskey, Brackeen v. Bernhardt, Ambach v. Norwick, Morton v. Mancari, Mathews v. Diaz
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