Freedom to conduct a business, a comparative law perspective : United States of America

This document is part of a series of Comparative Law studies that analyze the freedom to conduct a business in different legal orders around the world. After a brief historic introduction and a presentation of applicable legislation and case law, the content, limits and possible evolution of this freedom are examined. The subject of this study is the United States' federal legal system. The United States' Constitution does not grant an express right to freely conduct or operate a business. To the contrary, the Constitution expressly grants the federal Congress power to regulate interstate commerce. In addition, per the Tenth Amendment to the Constitution, the states can regulate businesses under their inherent police power to protect the health, safety, and general welfare of their inhabitants. Although early Supreme Court precedent recognized an "economic property right" that merited constitutional protection from government interference, the Supreme Court's position significantly changed in the 1930s during the New Deal expansion of federal regulation and intervention in the national economy. In the modern era, the Supreme Court has consistently ruled that the federal and state governments have a broad power to regulate businesses to serve any legitimate purpose so long as the legislation or regulations have a rational basis connected to that purpose.