Commerce Clause - Pre

Question 1

Commerce Clause, Pre-Early Period R: Art. 1, Sec. 8, Cl. 3

Answer 1

Congress shall have power to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes.” In this period, Commerce Clause was interpreted broadly.

Question 2

A (Pre-Early Period Commerce Clause): Ogden v. Gibbons

Answer 2

Navigation in public waters can be regulated under the Commerce Clause because it involves commercial intercourse that affects the States generally. Navigation is intercourse b/c (i) common understanding at the time (ii) history of navigation being regulated by Congress, (iii) original intent of founders when creating Commerce Clause was to quell trade war between States (don’t want States blocking interstate trade) = CHANNELS OF COMMERCE. The navigation is “among the States” because trade is intermingled activities with a State beyond its border (intrastate commerce that AFFECTS interstate commerce can be regulated). “regulate” means to prescribe rules that govern the activity = no limit, other than in Constitution, to regulate commerce

Question 3

Commerce Clause: Early Period “Protecting Zone of Interests” R: Art. 1, Sec. 8, Cl. 3

Answer 3

“Congress shall have power to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes”
Commerce clause will not affect activities that are within a State’s “zone of activities”
“Zone of activities” = production, mining, manufacturing
TWO TESTS:
- Direct-Indirect Effects Test
– Activities that directly affected interstate commerce were regulable under Commerce Clause
– Activities with only indirect effects were not
- “Stream of Commerce” Test
– If product/thing moving across state lines, then regulable