In the chapters which have gone before, the extent of the powers of the States with reference to interstate commerce has been considered. In the present chapter we shall have to deal with the extent of the regulative, that is to say, of the legislative power, granted to Congress by the Commerce Clause.

Until 1887 the constitutional power granted the Federal Government by the Commerce Clause was employed by that government only by way of preventing the exercise of unconstitutional powers by the States. No attempt up to this time was made to put into exercise the affirmative legislative powers granted by that clause. In 1887, however, an act of Congress was passed establishing the Interstate Commerce Commission, and laying down certain regulations in accordance with which interstate commerce should be carried on, and providing for the enforcement of these regulations by the Commission and by the federal courts. In 1890 by the so-called Sherman Anti-Trust Act, interstate commerce was subjected to still further regulation; and, by the act of 1906, the whole matter of regulating railway rates subjected to affirmative federal control. By these and by other less important legislative acts, as well as by other and more radical measures which have been urged for enactment by Congress, the question as to the extent of the legislative powers of Congress with reference to foreign and interstate commerce has become one of great present importance. The character of the legislation already enacted will appear in the discussion which is to follow.

Over interstate commerce, the Federal Government has an authority equal in extent to that possessed by the States over domestic commerce or by the United States with reference to foreign commerce. This the Supreme Court has repeatedly declared.1

1 "The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations." Brown v. Houston, 114 U. S. 622; 5 Sup. Ct. Rep. 1091; 29 L. ed. 257.

The control of interstate and foreign commerce being granted to the Federal Government without limitation, the grant is, according to the general principle governing the interpretation of grants of federal power, construed to be plenary. This was stated in absolute terms by Marshall in Gibbons v. Ogden,2 and has never been questioned. "This power," said the Chief Justice, " like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States." 3