Tribes, Nations, States: Our Three Commerce Powers

Abstract

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.” Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday. Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.