Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws, on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Attorney General Opinions

A bill that requires the labeling of poultry products specifying their geographic origin on their container does not violate the U.S. Constitution's commerce clause. Att. Gen. Op. 67-11.

Proposed amendment to article 8, titled "Nuclear Energy", of chapter 14 of Hawaii County Code, that would prohibit the transportation into or storage of any radioactive material that could be used, e.g., in an irradiation facility, impermissibly regulated the flow of interstate commerce and thus violated the commerce clause. Att. Gen. Op. 99-1.

Law Journals and Reviews

Bankruptcy.

The "ABCs" of Hawaii's Assignment for Benefit of Creditors Law. 13 HBJ, no. 13, at 127 (2009).

Setting Aside Transfers of Property in Foreign Countries: How Long Is the Reach of the United States Bankruptcy Court? 32 UH L. Rev. 53 (2009).

Commerce.

The New Resident: Hawaii's Second-Class Citizen. 5 HBJ 77.

The Power of the Courts to Protect Journalists' Confidential Sources of Information: An Examination of Proposed Shield Legislation. 11 HBJ 35.

Hawaii's Quarantine Laws: Can Spot Come Home? 13 UH L. Rev. 175.

A Skeleton in the Legal Closet: The Discovery of "Kennewick Man" Crystalizes the Debate over Federal Law Governing Disposal of Ancient Human Remains. 21 UH L. Rev. 41.

The Jurisdictional Limits of Federal Criminal Child Pornography Law. 21 UH L. Rev. 73.

Federalism and Federal Spending: Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional. 23 UH L. Rev. 479.

The Akaka Bill: The Native Hawaiians' Race For Federal Recognition. 23 UH L. Rev. 857.

Loko i‘a: A Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm. 24 UH L. Rev. 657.

The Aboriginal Land Title of the Native People of Guam. 26 UH L. Rev. 1.

Price Controls in Paradise: Foreshadowing the Legal and Economic Consequences of Hawai‘i's Gasoline Price Cap Law. 27 UH L. Rev. 549.

Gonzales v. Raich: How the Medical Marijuana Debate Invoked Commerce Clause Confusion. 28 UH L. Rev. 261.

Crying Over Spilt Milk: Recognizing Hawaii's Unique State Characteristics in the Context of the Dormant Commerce Clause. 32 UH L. Rev. 513 (2010).

In Search of Smarter Homeowner Subsidies. 40 UH L. Rev. 203 (2017).

Up In The Air: The Status & Future of Drone Regulation in Hawai`i. 40 UH L. Rev. 307 (2017).

Patents and copyrights.

Questions and Answers About the Performance of Music Under the New Copyright Law. 15 HBJ 21.

Discretionary Use of the Doctrine of Equivalents in Patent Law: Going Beyond the Triple Identity Test of Graver Tank. 17 UH L. Rev. 513.

The Misappropriation Doctrine in Cyberspace: Protecting the Commercial Value of "Hot News" Information. 20 UH L. Rev. 421.

Music on the Internet: An International Copyright Dilemma. 23 UH L. Rev. 183.

No Free Music: Effect of A & M Records, Inc. v. Napster, Inc. on the Music Industry and Internet Copyright Law. 23 UH L. Rev. 767.

New York Times Co. v. Tasini: Can Electronic Publications Ever Be Considered Revisions of Printed Media? 24 UH L. Rev. 843.

A Macabre Fixation: Is Plastination Copyrightable? 32 UH L. Rev. 125 (2009).

Property Law and American Empire. 34 UH L. Rev. 471 (2012).

America Invents Act: Promoting Progress or Spurring Secrecy? 36 UH L. Rev. 1 (2014).

Patent Quality. 38 UH L. Rev. 287 (2016).

Taxing and spending.

Federalism and Federal Spending: Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional. 23 UH L. Rev. 479.

Patricia N. v. LeMahieu: Abrogation of State Sovereign Immunity Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act After Board of Trustees v. Garrett. 24 UH L. Rev. 347.

Case Notes

Commerce.

Fifth Amendment's takings clause precludes federal government from exercising commerce clause authority to promote navigation. 444 U.S. 164.

Liquor tax exemption for okolehao and pineapple wine violated commerce clause because it had both purpose and effect of discriminating in favor of local products. 468 U.S. 263.

Where individual plaintiffs claimed that the Patient Protection and Affordable Care Act violated provisions of the commerce clause and tax clause by requiring Americans to purchase minimum essential health care coverage, plaintiffs were unable to establish standing under Article III because they were unable to show that government action was causally connected to the plaintiffs' injury, as the minimum essential coverage provision had no means of enforcement as described in the Act. 593 U.S. 659 (2021).

Where state plaintiffs, including Hawaii, claimed that the Patient Protection and Affordable Care Act injured them by requiring them to pay a share of the costs of serving new enrollees in state-operated or state-sponsored insurance programs such as medicaid, the state plaintiffs failed to establish standing under Article III because they did not show how this injury was directly traceable to any actual or possible unlawful government conduct in enforcing the minimum essential coverage provision of the Act. 593 U.S. 659 (2021).

Lagoon formed from littoral Hawaiian fishpond was incapable of use as continuous highway for purpose of navigation in interstate commerce, not subject to federal navigational servitude. 944 F.2d 1489.

No commerce clause violation by state anchoring and mooring regulations where state's interest in having regulations for public safety is substantial and there is little burden on interstate commerce. 42 F.3d 1185.

Where defendant argued that Congress exceeded its authority under commerce clause when it enacted 21 U.S.C. §841(a)(1), i.e., defendant contended, inter alia, that possession of a controlled substance is not necessarily a commercial activity that may be regulated under commerce clause, defendant's commerce clause argument lacked merit. 94 F.3d 1247.

Where defendant who entered conditional guilty pleas to two counts of illegal possession of a firearm, contended that 18 U.S.C. §922(g), as applied to defendant, represented an unconstitutional extension of Congress' power to regulate interstate commerce, and that §922(g) could not be justified as having a substantial effect on interstate commerce, district court's denial of defendant's motion to dismiss on commerce clause grounds affirmed. 479 F.3d 1153.

Plaintiffs lacked standing where they asserted that the cabotage provisions of the Jones Act violated the commerce clause; even if plaintiffs established standing, they would still fail to state a claim. The commerce clause does not limit Congress' authority to regulate interstate commerce and plaintiffs' complaint was aimed squarely at a regulation of commerce among the several states, specifically shipping between Hawaii and the other states. 795 F.3d 1012 (2015).

Airline engaged in interstate and foreign commerce subject to suit in Hawaii. 253 F. Supp. 588.

Control share acquisition law is unconstitutional because it directly burdens interstate commerce and its indirect burden on commerce outweighs its benefits. 643 F. Supp. 161.

Congress is provided with the exclusive authority to regulate the nation's waterways. 725 F. Supp. 1509.

Defendant's motion to dismiss indictment alleging that defendant violated 18 U.S.C. §922(g) by possessing a rifle and ammunition while being an unlawful user of a controlled substance denied, where defendant argued that the statute, as applied to the facts of the case, was an unconstitutional exercise of Congress' commerce clause authority. 351 F. Supp. 2d 1045.

Plaintiff had not presented sufficient evidence to raise a question of fact as to whether the seasonal ban on parasailing imposed clearly excessive burdens on interstate commerce. 380 F. Supp. 2d 1160.

Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, violated the commerce clause; the city's interest in the safety of its citizens reasonably outweighs any incidental impact on interstate commerce; also, the commerce clause does not protect plaintiff's method of operation in a retail market. 796 F. Supp. 2d 1261 (2011).

Not all burdens imposed by a state upon commerce, but only undue or discriminatory ones, are forbidden. 46 H. 269, 379 P.2d 336; 48 H. 486, 405 P.2d 382.

General excise tax on commissions received by travel agencies does not offend the commerce clause if (1) it does not discriminate against interstate commerce, (2) it is fairly apportioned so as to cover only income attributable to activity within state, (3) it does not subject interstate commerce to cumulative taxation. 53 H. 419, 495 P.2d 1172.

A tax upon out-of-state company's income based upon leased telecast rights exercisable only in Hawaii held not unconstitutional burden on interstate commerce. 57 H. 175, 554 P.2d 242.

Where comparison between out-of-state taxpayer and its in-state counterpart shows tax advantage to the former, such taxpayer has no ground to complain that use tax violates the commerce clause. 58 H. 163, 566 P.2d 1091.

Imposition of public service company tax on interisland air carrier was not undue burden on commerce. 65 H. 1, 647 P.2d 263.

No violation in exempting certain locally produced products from liquor tax. 65 H. 566, 656 P.2d 724.

No violation of commerce clause by Hawaii's imposition of general excise tax on Delaware corporation which sold books to the state library where corporation's presence in Hawaii was a continuous process of sales and service creating a substantial legal nexus with Hawaii, and tax was "internally" and "externally" consistent for fair apportionment of taxable income. 103 H. 359, 82 P.3d 804.

Challenge to the validity of §707-756, electronic enticement of a child in the first degree, under the doctrine of the dormant commerce clause was without merit, as the electronic enticement statutory prohibition does not interfere with, or does not involve, interstate commerce. 134 H. 515, 345 P.3d 181 (2015).

Section 707-756 does not concern interstate commerce, and therefore, scrutiny under the commerce clause was not appropriate. Assuming, arguendo, that §707-756 warranted commerce clause scrutiny, the section does not violate the dormant commerce clause. 131 H. 312 (App.), 318 P.3d 602 (2013).

Naturalization.

The Welfare Reform Act established a uniform federal structure for providing welfare benefits to distinct classes of aliens. The entire benefit scheme flows from these classifications; a state's limited discretion to implement a plan for a specified category of aliens does not defeat or undermine uniformity. 748 F.3d 875 (2014).

The limited discretion authorized to states for the third category of aliens established by the Welfare Reform Act, which included Compact of Free Association residents, did not undermine the uniformity requirement of the naturalization clause. 797 F.3d 572 (2014).

Necessary and proper.

Migratory Bird Treaty Act was upheld by Supreme Court under necessary and proper clause and Article II treaty-making power. 103 F.3d 1475.

Treaty power coupled with the necessary and proper clause provided Congress with an additional source of authority to apply federal statute beyond U.S. borders. 525 F.3d 709.

Respondent contended that Congress exceeded its authority in enacting 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act as applied to persons, like respondent, who are in the custody of the Bureau of Prisons, but whose sentences have expired; Congress did not exceed its authority in enacting a civil commitment scheme that applies to persons in the custody of the Bureau of Prisons. 574 F. Supp. 2d 1123 (2008).

Taxing and spending.

Allegation that State improperly administers unemployment compensation program is not sufficient to confer standing to challenge federal contributions to state program. 691 F.2d 905.