Commerce Clause and Admiralty

The Commerce Clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.  It is common to see the Commerce Clause referred to as “the Foreign Commerce Clause,” “the Interstate Commerce Clause,” and “the Indian Commerce Clause,” each of which refers to a different application of the same single sentence in the Constitution.

Dispute exists as to the range of powers granted to Congress by the Commerce Clause.  As noted below, the clause is often paired with the Necessary and Proper Clause, the combination used to take a broad, expansive perspective of these powers.

The commerce clause also provides comprehensive powers to the United States over navigable waters.  These powers are critical to understanding the rights of landowners adjoining or exercising what would otherwise be riparian rights under the common law. The Commerce Clause confers a unique position upon the Government in connection with navigable waters. “The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States…. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress[i].

Even in the absence of the clause giving admiralty and maritime jurisdiction to the federal courts, the commerce clause would be a sufficient basis for federal admiralty power over some, but not all, matters of a maritime nature.  Indeed, commerce, in terms of the commerce clause, includes navigation.  However, it has been pointed out that the admiralty power of Congress and the admiralty jurisdiction of the federal courts are not limited to matters that fall within the scope of the commerce clause.

[i] United States v. Rands, 389 U.S. 121 (1967).


Inside Commerce Clause and Admiralty