Commerce Clause

Question 1

General Ideas

Answer 1

1. Congress has limited power under US Constitution
   a. States have plenary power
2. Enumerated powers
   a. Commerce Clause (Art. I § 8, cl. 3)- Power to regulate commerce between the states, foreign nations, and tribes
   b. Necessary & Proper Clause (Art. I § 8, cl. 18)- power to enact enumerated powers through means convenient and helpful

Question 2

General Commerce Clause Cases

Answer 2

Cases- broadness of Commerce Clause

• Gibbons v. Ogden- commerce power is very broad
  
  • Then SCOTUS tried other tests (categories, stream, etc.)
  • Gave up and returned to Gibbons v. Ogden
• McCulloch v. Maryland- national bank is a convenient and useful mechanism to fulfil Constitutional function granted to Congress
• US v. Comstock- there must be a means/ends rationality of laws to be allowed under commerce clause- court to determine this

Question 3

3 Ways Congress is allowed to regulate Commerce

Answer 3

• Channels – conduits through which commerce travels- roads, telephone lines
• Instrumentalities- persons and things
• Intra-state activities which substantially effect interstate commerce

Question 4

Channels

Answer 4

• conduits through which commerce travels
• roads, telephone lines, ways through which commerce passes
• Gibbons v. Ogden

Question 5

Instrumentalities

Answer 5

• Champion v. Ames (Lottery Ticket)- congress can regulate goods crossing state lines even if goods don’t effect anything intrastate (created bucket 2)

Question 6

Intrastate Activities which Substantially Effect Interstate Commerce- Jones

Answer 6

• NLRB v. Jones- congress can regulate intrastate activities that potentially could have significant impact on interstate commerce; i.e. local employment practices in business effecting interstate commerce (shifting away from Schechter[sick chicken])

Question 7

Intrastate Activities which Substantially Effect Interstate Commerce- Economic

Wickard v. Filburn

Answer 7

• Wickard v. Filburn- farmer growing wheat overproduced;
  
  • rational basis test- has to be a logical nexus basis between congresses commerce powers means and the end result
  • courts look at the aggregate of the effects of all people engaging in the behavior
  • law will be upheld so long as court can “conceive of a rational basis on which Congress could conclude that in aggregate would substantially effect interstate commerce”

Question 8

Intrastate Activities which Substantially Effect Interstate Commerce- Lopez

Answer 8

• Lopez v. US- possession of gun case- if behavior is not economic AND purely local this is beyond the scope of Congress’s commerce power
  
  • No piling inference upon inference to reach ‘economic’ activity
  • Need jurisdictional nexus/hook
  • Some limit on commerce power

Question 9

Intrastate Activities which Substantially Effect Interstate Commerce- Economic

Heart of Atlanta

Answer 9

• Heart of Atlanta Hotel v. US- hotel didn’t want to have black people; civil rights act of 1964; no power under CC to enact
  
  • Congress could rationally conclude that discriminatory behavior can be economic if examined in the aggregate;
  • congresses motives are irrelevant if falls within 3 buckets

Question 10

Intrastate Activities which Substantially Effect Interstate Commerce- Economic

Katzenbach v. McClung

Answer 10

**Katzenback v. McClung- **Ollies BBQ refused to serve blacks

• introduces ‘jurisdictional hook’ - something has to cross state line
• Since some purchased food traveled interstate, congress can regulate
• courts defer to Congress as to whether activity was ‘economic’ in nature
• converse- if activity was not economic, courts will not defer to Congress
• Congressional power to regulate commerce can extend to seemingly local activities if there is a connection to national commerce.

Question 11

Intrastate Activities which Substantially Effect Interstate Commerce- Economic

Gonzalez v. Raich

Answer 11

• Gonzalez v. Raich- marijuana being grown and used purely intrastate
  
  • Marijuana being grown and consumed privately & purely intrastate, in the aggregate, will inevitably make it into the interstate market; thus quintessentially economic and thus commercial
  • Congress had a rational basis for concluding; no need for specific congressional findings
  • No need for substantial impact; only a plausible story to uphold commerce power
  • In order to be able to police this illegal activity, Congress could regulate all aspects of marijuana

Question 12

Intrastate Activities which Substantially Effect Interstate Commerce- Economic

NFIB v. Sebelius

Answer 12

NFIB v. Sebelius- ACA -congress can regulate existing commerce, but cannot create commerce or conscript people to conduct commerce

• where there is an individual mandate requiring people to have minimum essential health coverage, can congress compel?
• no, Congress can regulate existing commerce, but cannot create it
• but, because this is a tax, this isn’t creating commerce and it’s constitutional

Question 13

Constitutional Avoidance Doctrine

Answer 13

courts will avoid ruling on constitutional issues if there is a non-constitutional way of interpreting a statute

Question 14

Necessary and Proper Clause

Answer 14

Art I, § 8, cl 18- power to enact enumerated powers through means convenient and helpful

Question 15

Jurisdictional Hook

Answer 15

Statuatory clause that requires a sufficient nexus to interstate commerce that has a basis in one of the three categories.

Question 16

Applied vs. Facial Challenge

Answer 16

Applied challenge- the law is unconstitutional as it applies to me

Facial challenge- the law is unconstitutional as it applies to everyone

Question 17

Intrastate Activities which Substantially Effect Interstate Commerce- Darby

Answer 17

• US v. Darby- FLSA challenged as regulation not in the commerce powers of congress;
• when intrastate activities ‘substantially effect’ interstate commerce, congress may regulate (gives us bucket 3)
• congress’s motive is irrelevant as long as there is a rational basis

Question 18

Intrastate Activities which Substantially Effect Interstate Commerce- Ames (lottery ticket)

Answer 18

Champion v. Ames- prohibiting sale of lottery ticket across state lines is OK-

effects channels and instrumentalities

it’s economic and doesn’t usurp state law

Question 19

Intrastate Activities which Substantially Effect Interstate Commerce- Schechter- Sick Chicken Case

Answer 19

Schechter- Created the direct effect test (instrumentality)

indirectly begins to set up the third category- intrastate activity that substantially effects interstate commerce.

Question 20

Interstate Activities which Substantially Effect Interstate Commerce- Morrison

Answer 20

• US v. Morrison- federal cause of action for rape- backs up Lopez; even with substantial findings by Congress, purely local activity that is non-economic is outside commerce clause power of congress