Constitutional Law: Regulation of Foreign Commerce

Question 1

Lies Exclusively with Congress

Answer 1

For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress.
“Foreign” commerce has been held to include traffic on the high seas, even though both terminal
ports are within the United States. [Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434
(1979)]

Question 2

Minor Exception Where State Regulation Permitted

Answer 2

The Supreme Court, however, has recognized a few minor exceptions; thus, the states are free to
regulate local aspects of port pilotage and navigation of ships in foreign commerce (e.g., aspects
such as safety of handling); and in one case the Court permitted state regulation of excursion
boat traffic between Detroit and a Canadian island (state barred racial discrimination among
boat passengers) since no Canadians or Canadian products or services were involved. [Bob-Lo
Excursion Co. v. Michigan, 333 U.S. 28 (1948)]