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Question 1

_________ means the ability to tell someone what they can and cannot do. Doesn’t spend money directly but could have a benefit to others.

Answer 1

Regulatory

Question 2

The Commerce Clause is _______ in nature.

Answer 2

regulatory

Question 3

Congress’s powers are limited to those expressed in the Constitution. To enact a law, congress must rely on some identified grant of legislative authority. Under the _______ _______, congress has power to regulate commerce among states. The scope of this power is heavily debated between opposing political parties.

Answer 3

commerce clause

Question 4

The Commerce Clause has a three prong test:
1. ?
2.
3.

Answer 4

1. The channels of interstate commerce

Question 5

The Commerce Clause has a three prong test:
1.
2. ?
3.

Answer 5

2. The instrumentalities of interstate commerce or persons or things in interstate commerce, even though the threat may come from intrastate activity; and

Question 6

The Commerce Clause has a three prong test:
1.
2.
3. ?

Answer 6

3. Those activities that substantially affect interstate commerce

Question 7

The scope of this power is heavily debated between opposing political parties.

Answer 7

Commerce Clause

Question 8

(1) Channels: Congress can validly regulate use of the “channels” of interstate commerce (e.g., _________ and ________) even though a particular activity may occur wholly intrastate.

Answer 8

highways and waterways

Question 9

(2) Instrumentalities: Congress can regulate the instrumentalities used in interstate commerce, even though the regulation affects a solely intrastate activity (e.g., Congress could mandate that every truck used in interstate commerce have a specific safety device, even though a particular truck is used only intrastate). This category refers to people, machines, and other “things” used in carrying out commerce. !!

Answer 9

!!

Question 10

(3) “Substantially Affecting” Commerce: The biggest category of activities that can be regulated contains those activities that have a “substantial effect” on interstate commerce. The rule governing congressional regulation based on this category depends on whether the activity in question is _________ or _________.

Answer 10

commercial

non-commercial

Question 11

Activity is ________: If the activity itself is arguably commercial, then the “cumulative effect” theory of Wickard v. Filburn, 317 U.S. 111 (1942), applies; Congress can regulate an activity that as a class has a substantial effect on interstate commerce, even if the activity, taken alone, would not.

Answer 11

commercial

Question 12

Activity is __________: Under U.S. v. Lopez, 514 U.S. 549 (1995), it now appears that if the activity is not commercial, then Congress can regulate only if there is a pretty obvious connection between the activity and interstate commerce. (Thus in Lopez, the relationship of guns in schools and commerce was found to be too weak a connection to satisfy this test. And in the later case of U.S. v. Morrison, 529 U.S. 598 (2000), the relationship between violence against women and interstate commerce was also too weak—for instance, the fact that some women fail to travel interstate or to work for interstate businesses because they fear violence was found to be too weak a connection to interstate commerce to qualify.)

Answer 12

non-commercial

Question 13

When Congress tries to regulate intrastate commerce (local activities) under the 3rd prong, the court will uphold the regulation if there is a rational basis on which congress could conclude that the activity, in the aggregate, ________ _______ interstate commerce.

Answer 13

substantially effects

Question 14

Substantial Effects Requirement: When Congress tries to regulate intrastate commerce (local activities) under the 3rd prong, the court will uphold the regulation if there is a rational basis on which congress could conclude that the activity, in the _________, substantially affects interstate commerce.

Answer 14

aggregate

Question 15

Requires an economic activity to kick-in.

Answer 15

Substantial Effects Requirement

Question 16

____ __________ Implications: the ____ _________ will prohibit congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local gov’ts.

Answer 16

10th Amendment

10th Amendment

Question 17

10th Amendment Implications: the 10th Amendment will prohibit congress from regulating _________ _________ activity in areas traditionally regulated by state or local gov’ts.

Answer 17

noneconomic intrastate

Question 18

They (liberals and conservatives) both largely agree with the ______ _______ _____ of the commerce clause.

Answer 18

first two prongs

Question 19

Conservatives advocate that the liberal view is too broad, and due to this view the federal police power is too broad.

Importantly Conservatives dispute the 3rd prong of power held by the federal government. This is because they believe for the commerce clause to be implicated, the economy must be implicated at issue, like buying or selling something.

Examples: Actually pulling out your wallet and driving to Starbucks is regulable, not making coffee at home.)

Additionally, they take issue with the liberal view because they say it takes away federalism due to the broad spanning regulation by the federal government and this gives the federal government police powers that are delegated to the states.

Answer 19

Commerce Clause

Question 20

Commerce Clause: __________ advocate that the ________ view is too broad, and due to this view the federal police power is too broad.

Answer 20

Conservatives

liberal

Question 21

Importantly Conservatives dispute the 3rd prong of power held by the federal government. This is because they believe for the commerce clause to be implicated, the ________ must be implicated at issue, like _______ or ________ something.

Answer 21

economy

buying or selling

Question 22

Actually pulling out your wallet and driving to Starbucks is regulable, not making coffee at home.)

Answer 22

Conservative view of the Commerce Clause

Question 23

What is an example of the conservative view of the Commerce Clause?

Answer 23

Actually pulling out your wallet and driving to Starbucks is regulable, not making coffee at home.)

Question 24

Additionally, Conservatives take issue with the liberal view because they say it takes away _________ due to the broad spanning regulation by the federal government and this gives the federal government _____ _______ that are delegated to the _______.

Answer 24

federalism

police powers

states

Question 25

Liberals advocate that Congress may regulate anything that has an effect on commerce. Under this view, congress should regulate everything we do because everything has an effect on commerce, even what seems non-economic effects the economy.

Liberal: broad – it just has to be related to commerce the activity doesn’t have to be commerce. Something that in aggregate effects commerce – possessing a handgun near a school is regulable.

• Problem: too broad and hard to conceive an activity that wouldn’t affect commerce. Everything we do in aggregate effects commerce. If I decided not to get a haircut that effects commerce.

Answer 25

Commerce Clause

Question 26

________ advocate that Congress may regulate anything that has an effect on commerce. Under this view, congress should regulate everything we do because everything has an effect on commerce, even what seems non-economic effects the economy.

_______ broad – it just has to be related to commerce the activity doesn’t have to be commerce. Something that in aggregate effects commerce – possessing a handgun near a school is regulable.

Problem: too broad and hard to conceive an activity that wouldn’t affect commerce. Everything we do in aggregate effects commerce. If I decided not to get a haircut that effects commerce.

Answer 26

Liberals

Liberal

Question 27

Liberals advocate that Congress may regulate ________ that has an effect on commerce. Under this view, congress should regulate everything we do because everything has an effect on commerce, even what seems non-economic effects the economy.

Answer 27

anything

Question 28

What is an example of the liberal view under the Commerce Clause?

Answer 28

Liberal: broad – it just has to be related to commerce the activity doesn’t have to be commerce. Something that in aggregate effects commerce – possessing a handgun near a school is regulable.

Question 29

Liberal: _____ _______ it just has to be related to commerce the activity doesn’t have to be commerce. Something that in aggregate effects commerce – possessing a handgun near a school is regulable.

Answer 29

broad view

Question 30

Liberal: broad view. It just has to be related to ________ the activity doesn’t have to be ________. Something that in aggregate effects commerce – possessing a handgun near a school is regulable.

Answer 30

commerce

commerce

Question 31

Problem: too broad and hard to conceive an activity that wouldn’t affect commerce. Everything we do in aggregate effects commerce. If I decided not to get a haircut that effects commerce.

Answer 31

Problem with the liberal view of the commerce clause

Question 32

At the time of the adoption of the Constitution, _______ ________ concerned goods that crossed state lines, as distinguished from manufacturing or agricultural processes. Early decisions reflected this bright line distinction, but soon recognized that even the internal commerce of a state could have a substantial effect on interstate commerce.

Answer 32

interstate commerce

Question 33

_______ _______: Case _______ v. _______New York legislature granted Livingston a long-term monopoly to operate steamboats in New York waters. Livingston subsequently assigned part of the monopoly to Ogden to run steamships between New York City and Elizabethtown, New Jersey. When Gibbons was granted a federal license to operate steamboats along a similar route, Ogden sued, claiming that the federal license was invalid. The Court found that the federal law was valid and supreme under the Supremacy Clause and therefore the state law and its monopoly holder (Ogden) must give way to federal license holder (Gibbons).

Answer 33

Initial Era: Gibbons v. Ogdon

Question 34

Case: Initial Era. Gibbons v. Ogdon

• Chief Justice Marshall concluded that the term “___________” was not limited to “the interchange of commodities,” but instead extended to “intercourse between nations, and parts of nations, in all its branches.” The __________ power extends to commerce “among the several States” which “cannot stop at the external boundary line of each State but may be introduced into the interior” even though it cannot extend to the “exclusively internal commerce of a State.”

Answer 34

commerce

commerce

Question 35

Case: Initial Era. Gibbons v. Ogdon

The Court’s holding established _______ ________ for Congressional power under the Commerce Clause.

Answer 35

broad powers

Question 36

Case: Initial Era. Gibbons v. Ogdon

The Court’s holding established broad powers for Congressional power under the __________ ________.

Answer 36

Commerce Clause

Question 37

Case: Initial Era. Gibbons v. Ogdon

It concluded the Congressional Commerce Clause is ________ in nature.

Answer 37

regulatory

Question 38

Case: Initial Era. Gibbons v. Ogdon

It concluded that Congressional power under the Commerce Clause can be expansively enacted because of the ________ and _______ ________.

Answer 38

necessary and proper clause

Question 39

Case: Houston, East and West Texas Railway Co., was a significant break with prior judicial reasoning about the Commerce Clause. After that decision, Congress had the Court-sanctioned power to regulate the internal commerce of a state when the item being regulated had a “________ and ________l” relationship to interstate commerce—a significant opportunity for additional regulation.

Answer 39

close and substantial

Question 40

Case: Houston, East and West Texas Railway Co.
Holding: Congress may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their ________ operations to the injury of interstate commerce.

Answer 40

intrastate

Question 41

Case: A.L.A. Schechter Poultry Corp. v. United States

The Court limited Congress’s power to regulate intrastate transactions by restricting Congress to only those matters with a “______ ______” on interstate commerce.

Answer 41

direct effect

Question 42

Case: A.L.A. Schechter Poultry Corp. v. United States

Holding: Activities that have a ______ effect on interstate commerce are subject to Congress’s jurisdiction while activities that have an _____ effect are not.

Answer 42

direct

indirect

Question 43

First, the Court routinely noted that Congress has the power to “regulate the ______ of interstate commerce.” United States v. Lopez, 514 U.S. 549, 558 (1995). Second, it allowed that Congress could regulate the _________ of interstate commerce. See The Shreveport Rate Case, 234 U.S. 342 (1914). Third, and finally, it was recognized that Congress also could regulate intrastate activities that have a “_______ _______” on interstate commerce. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).

Answer 43

channels

instrumentalities

substantial effect

Question 44

Case: Hammer v. Dagenhart
* In Hammer, Congress attempted to prohibit the interstate shipment of goods produced within the prior thirty days by children under the age of fourteen, or by children working long days or hours. The Court rejected Congress’ claim that it possessed the power to regulate, viewing the regulation as an attempt “to standardize the ages at which children may be employed in mining and manufacturing within the states.” Further, the goods produced by the child labor were “themselves harmless,” and the production by children was over before the goods were shipped. The Court regarded “production” as a matter for local regulation, and the power to regulate child labor as within the auspices of the states under the “________ _______-” of the ______ ___________.

**OVERRULED BY DARBY!

Answer 44

Police Power

10th Amendment

Question 45

The Court in Hammer v. Dagenhart, 247 U.S. 251 (1918), invalidated a similar statute on the grounds that the employment was not directly related to interstate commerce even though the articles traveled in interstate commerce. Hammer was overruled by U.S. v. Darby, 312 U.S. 100 (1941). The Court has identified different theories of the Commerce Clause at different stages of its history. !!

Answer 45

!!