Commerce Clause Flashcards
What is the Commerce Clause
Art. I, Sec. 8, Cl. 3 (The Commerce Clause): The Congress shall have Power… to regulate Commerce with foreign nations, and among the several States.
Current Doctrinal View of the Commerce Clause
Current Doctrinal View
1) Commerce is: all aspects of business and life in US (Current law)
2) C may regulate commerce that has: ANY effect on interstate commerce (Current law)
3) 10A: SC DOES enforce 10A thus it CAN be violated (Current law)
Exam tip: the side that doesn’t want C to have the power to regulate will argue that C is outside of it’s box b/c it’s regulating something outside of it’s commerce power
Analytical Framework
Part 1: Activities that Congress May Regulate:
1) The use of the channels of interstate commerce (highways and waters)
2) Instrumentalities of and persons or things in interstate commerce (Railroads, vehicles, boats and planes)
- Don’t worry about distinguishing the 2
3) Local (intrastate) activity that affects interstate commerce
(i) If here, then the question is if what’s being regulated is economic or non-economic
Part 2: Does the activity being regulated fall w/in the Raich definition of Economic?
Economic: “the production, distribution, OR consumption of commodities”
- Gov Arg: Want court to say activity being regulated is economic + Wickard rule
Non-Economic: Lopez and Morrison
(i) P argument: C is regulating a non-economic activity + Lopez rule
Part 3: Wickard or Lopez?
If the court deems the activity is economic => deferential Wickard analysis and will not be struck down
If it is deemed non-economic it is left to the far less deferential and judge empowering Lopez and Morrison analysis and may get struck down
(a) Lopez Test is highly discretionary analysis for whether C is outside their box. The presumption depends on what a judge thinks is “too attenuated”
Part 4: Apply the Wickard Test or the Lopez Test
Part 5: Must Regulate activity b/c C only has the power to regulate activity (NFIB v. Sebelius)
Wickard Test
Whether Congress has rational basis to conclude that activity being regulated (by fed law) considered in the aggregate has a “substantial effect on interstate commerce”
- So deferential that almost everything satisfies this test
Write on Exam: Test is not whether there is an actual effect on interstate commerce, but rather whether Congress has some rational basis to conclude that there would be (no economic data needed).
Application of Wickard Test
• Types of things C can regulate during this era
○ Civil Rights Laws (Heart of Atlanta and Katzenbach)
○ Environmental Laws (Hodel v. Indiana)
o Criminal Laws (Perez v. US)
Lopez/Morrison Test
Factors in assessing whether a federal law substantially affects interstate commerce:
1) An essential part of larger regulation of economic activity
2) Includes an explicit jurisdictional element
3) Congressional findings may help but NOT determinative factor
4) Relies on reasoning linking the INTRAstate activity and interstate commerce that is too attenuated
How a judge will apply these discretionary factors are dependent on the judge’s normative belief about whether something needs to be left for the states.
- Depends on the judge and if they are concerned about federal government usurping state power (like Rehnquist in Lopez)
Not whether activity has an affect on interstate commerce, the question is whether this is an activity C has the power to regulate
Write on Exam: “These factors are not dispositive, they are just factors that can help the court to determine whether Congress exceeded it’s scope of the commerce clause and their power to regulate non-economic intrastate (local) activity. The court has broad discretion and can consider other things. Thus, it is very hard to predict how a judge will rule.”
NLRB v. Jones & Laughlin
TAKEAWAY
Congress has the Constitutional power to pass the National Labor Relations Act under the Commerce Clause; Case that shows the shift of the Court to broadening the Commerce Clause
FACTS
The NLRB charged J&L with discriminating against employees in hiring and tenure, and interfering with their ability to unionize. J&L’s shipping, mining, and manufacturing activities stretch across the midwest and eastern United States.
ISSUE: Is the NLRB within the power of Congress under the Commerce Clause?
HOLDING: YES
Congress has Constitutional power under Commerce Clause to pass National Labor Relations Act.
Not determinative that the workers here were only engaged in production – because J&L is such an expansive national presence, its acts affect commerce among the states.
Gibbons v. Ogden
TAKEAWAY: Oldest commerce clause case but still good law
FACTS: Dispute between Ogden, a steamboat operator working under an exclusive license from New York, and Gibbons, a ferry operator licensed to operate under Federal law. Gibbons argued the New York license violated the Federal law and interfered with Congress’ commerce power.
ISSUE: Whether the federal law is within the power of Congress under the Commerce Clause?
HOLDING: YES
“Commerce”
• Marshall interpreted the Commerce as broad – intercourse which includes navigation
“Commerce is undoubtedly traffic but it is something more. It describes the commercial intercourse between nations and parts of nations”
“Among Several States”
- “Intermingled with”
- “Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior”
- Concerns more than one state
NO 10th Amendment analysis at this time because it was not interpreted to limit Congress’s power or a provision Congress can violate
Lochner Era Commerce Clause
Congress’s power was defined more narrowly – goal of protecting State’s power and started to interpret the 10th A to impose a substantial limit on government’s power.
10th A is interpreted to be protecting a zone of regulation exclusively for the states
10th A invalidate Congressional law which congress has the power to pass under the Commerce Clause (within the box) but violates the 10th (federalism concept)
Historical Overview within this Period
- How the Court came to be perceived during this period (Lochner Court)
a. Protecting the fundamental right to contract is ultimately being used in a way to protect the employer monopolist business to the detriment of the workers
b. Ignoring disparate power dynamic between employers and employees
i. He thinks that it’s important to have robust judicial review to protect the property rights of the wealthy from being violated by the poor.
ii. Waves of popular feeling and to restrain the greedy hands of the many from filching from the few
c. Willingness to uphold the federal where the Lochner Court believed to be evil (lotteries) but not child labor - Federalism issue
a. Difficulty in designing a coherent principle rule/test to answer the question of how much power is reserved to the states.
Lochner Era Commerce Clause Cases
E.C. Knight: striking down federal law (anti-monopoly regulation of sugar refining industry)
Carter Coal: Striking down federal law (labor standards and price regulation in coal mining industry)
Shreveport Rate Cases: Upholding federal law (limiting rates charged for out-of-state lines in railroad industry)
Schechter Poultry: Striking down federal law (prohibiting child labor, minimum wage, maximum hours, labor standards in poultry industry)
Hammer v. Dagenhardt: Striking down federal law (prohibiting sale of products produced by child labor)
Champion v. Ames: Upholding federal law (making it illegal for shipping company to carry packages containing lottery tickets)
US v. Darby
TAKEAWAY
Case that overruled Dagenhardt; Congress has the power to pass the FLSA
FACTS
The Fair Labor Standards Act prevented the shipment and production of items that were produced under substandard labor conditions.
ISSUE
Is the FLSA within the power of Congress under the Commerce Clause?
HOLDING: YES
It wasn’t the Court/judiciary function to probe the purpose or motive of Congress in regulating interstate commerce because the Court is supposed to defer to Congress’s judgment.”
powers reserved to the states do not limit and otherwise constitutional exercise of the commerce power.
*NOT the current interpretation of the 10th A
Wickard v. Filburn
TAKEAWAY
Wickard Test: Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a substantial effect on interstate commerce?
Wickard is a very difficult test for the challenger to get over because of the low standard of review/deferential standard of review
FACTS: Wickard was an Ohio farmer. He was fined for exceeding the amount of wheat he was allotted to grow under the Agricultural Adjustment Act. The Act had been instituted to stabilize prices in the overall economy.
ISSUE: Whether the AAA is within the power of Congress under the Commerce Clause?
HOLDING:
The act of not putting wheat on the market affects interstate commerce by affecting the prices consumers experience across the country.
Wickard wont buy wheat in the market place if he is growing/producing it for home consumption
- the Agricultural Adjustment Act is a law that was put in place during this new deal era to protect farmers from the prices of their commodities going too low.
- The federal government had no other way to regulate the supply wheat unless it passes this law
KWF
o Under the Wickard Test, Courts does not require the government to prove the effect of a wheat farmer’s effect on the market. Moreover, it is constitutionally irrelevant that a person’s impact was trivial because the small/negligible activity all together will have a substantial effect in the economy
o LOOK at the activity being regulated
Heartland of Atlanta v. US
Application of Wickard Test b/c Buying and selling.
Motel refused to accommodate African Americans and Motel challenged Title II of CRA of 1964.
Court admitted that Congress was legislating against moral wrongs, however court held that it’s a bad argument for P to say Congress lacked the power to regulate something b/c their motivation for doing it was moral.
SC says Congress has the explicit power to regulate commerce (which this was b/c falls under the Raich definition of economic: buying and selling hotel rooms) and thus was subject to Wickard test and so it didn’t matter if C had an anti-rasict motivation.
Holding: Congress had a rational basis to conclude that in the aggregate, the regulated activity substantially affected interstate commerce b/c the Discrimination has a quantitative (blacks travel less) and a qualitative (blacks will spend less money) effect on interstate commerce
Determining if Congress is regulating Economic v. Non-economic activity
Raich: Economics refers to the production, distribution, OR consumption of commodities
(a) Exam tip: If what’s being regulated is a commodity like wheat or marijuana, then easy to say it’s economic
Economic ≠ commercial. Commercial means produced for sale
Katzenbach v. McClung
Private restaurant didn’t want to sell food to African Americans.
Another example of Wickard Test b/c buying and selling food.
Thus, when considered in aggregate it’s something C should be able to regulate
Hodel v. Indiana
Application of deferential Wickard test
The Court upheld a federal law that regulated strip mining and required reclamation of strip-mined land
Court may only invalidate a law enacted under the Commerce Clause when Congress lacks a rational basis to conclude that the activity considered in the aggregate has “affects interstate commerce.”
