What types of laws can Congress pass? What are the limits to Congress's power to pass laws?

A few students asked some creative questions about Congress's power to pass laws.  The short answer is that the Constitution grants Congress the power to pass certain types of laws.  If the Constitution does not grant Congress the power to pass a law, then Congress can't pass it.  The federal courts - - and ultimately the Supreme Court - -determines whether the Constitution grants Congress the power.

Students quickly understand that Congress cannot pass a law that violates a Constitutional right.  For example, Congress cannot pass a law demanding that people accept a religious belief because the First Amendment prohibits Congress from making any law regarding the establishment of a religion.

But obviously Congress has broad powers to enact laws given the number of federal laws that exist today.  Since the Great Depression, the Supreme Court has held that most laws passed by Congress were Constitutional under the Commerce Clause.

 To understand Congress's power to pass laws you should start with the Commerce Clause of the Constitution which empowers Congress to pass laws regulating commerce with "foreign nations" and "among the several States."  Over time, the Supreme Court has interpreted the Commerce Clause to enable Congress to pass a wide range of laws.  

Here is a general guide to Congress's power pursuant to the Commerce Clause (let's not worry too much about foreign commerce for now):

1. Congress can pass laws that concern the "instruments" and "channels" of interstate commerce and people that travel from one state to another state. For example, think about the mail, telephone, and highways. All of these can be used to conduct interstate activity.  

A person who uses a phone or the mail to commit a crime may be subject to federal law.  

Congress can pass laws regarding highway safety.  A person who travels across state lines and commits a crime may be subject to federal law.

Congress can even pass laws that may affect whether people will choose to travel from one state to another.  In one important case the Supreme Court held that anti-discrimination laws were Constitutional as applied to a private restaurant because the restaurant generated substantial business from out-of-state customers.

2. Activity within a state that may substantially affect interstate commerce can be subject to federal laws.  For example, even if a business conducts activity entirely within a state or a person conducts illegal activity entirely within a state, but Congress concludes that this conduct can substantially affect interstate commerce, then Congress can regulate the activity. 

 Below is a short video introducing the Commerce Clause.  



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