The U.S. Supreme Court's recent decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade (1973) and eliminated the constitutional right to abortion, has raised the possibility of a future Republican-controlled Congress seeking to ban abortion nationwide. If that happens, the resulting courtroom battles will likely center on a New Deal–era Supreme Court precedent that vastly expanded the scope of congressional power.
Under the Constitution, Congress possesses the authority "to regulate Commerce…among the several States." At the time of the founding, this power was understood to be a limited one. As Alexander Hamilton explained in Federalist 17, the Commerce Clause did not extend federal authority to "the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation." While Congress was permitted to regulate economic activity that crossed state lines, in other words, it was not empowered to control wholly intrastate economic undertakings.
