Commerce Power Flashcards
McCulloch v. Maryland, U.S. 1819
THEORY
Court held that Congress has the power to create a nat’l bank AND
MD does not have the power to tax the bank.
Takeaway is implied powers. Creating a national bank is an IMPLIED power of the constitution.
What is the commerce power?
It is a textually delineated power of the federal legislature.
Art. I § 8.
This power gives Congress the power to regulate commerce with foreign nations, among the several states and Indian tribes.
Gibbons v. Ogden, U.S. (1824)
Whether congress has power to regulate intrastate commerce.
No, internal affairs of state should only be regulated by the state.
Do not limit definition of commerce to buying and selling.
4 Different Eras of Commerce Clause
Era 1 – broadly defined, minimally used
Era 2 – Narrowly defined congress as one stage of business. The commerce must have a direct effect on interstate affairs. Limited by 10th amendment.
Era 3 – No 10th amendment limitation. Can regulate interstate and intrastate activities so long as it has a substantial effect on INTERSTATE commerce. KEY QUESTION: Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a “substantial effect on interstate commerce.”
Era 4 – CURRENT, narrowly defined and limited by the 10th amendment (LOPEZ)
Wickard Test
Key Question For Determining whether the commercial activity can be regulated by Congress
Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a “substantial effect on interstate commerce.”
Wickard v. Filburn, U.S. (1942)
Congress is able to pass an act which regulates the amount of wheat that a farmer can produce.
Created the Wickard Test
Whether Congress has a rational basis to conclude that the activity considered in the aggregate has a "substantial effect on interstate commerce." Note, a rational basis is lower than ACTUALLY having an effect. (do not say direct / indirect on the exam.)
Heart of Atlanta Motel, Inc. v. United States, U.S. (1964)
Theory case.
They used the civil rights act of 1964 over the SDP, to establish that racial discrimination in a public hotel has a disruptive effect on commercial interstate commerce.
Katzenbach v. McClung, Sr. & McClung, Jr., U.S. (1964)
More Theory.
Same reasoning of heart at atlanta, but also claimed that even if it is just one restaurant doing business in one state it may have an effect on interstate commerce.
United States v. Lopez, U.S. (1995)
Whether Congress can pass an act which makes it illegal to knowingly possess a gun at a school under the commerce clause.
The act passes the Wickard test, however, the Court was reluctant to take away police power from the state.
Highly discretionary.
Factors for determining whether non-economic local activity is w/ in scope of commerce clause
Lopez Factors
R.F.J.A.
- Whether the non-economic / criminal statute is part of larger economic Regulatory scheme;
- Evidence of congressional Findings that the law relates to interstate commerce;
- Is there a Jurisdictional element that is economic in nature?;
- whether the law is way too Attenuated from having to do anything with economy. (this is the most important factor)
What three categories may congress regulate via commerce power?
C.I.S.
- Channels of interstate commerce; (WICKARD)
- Instrumentalities of interstate commerce, or persons or things in interstate commerce; (WICKARD)
- Activities have a substantial relation to interstate commerce. (e.g., Local activity)
If it is Cat. 3, then you should rely on RAICH)
Remember on the test,
step 1. whether law in scope of congress’s commerce power;
step 2. whether activity is economic or non-economic;
step 3. rely on webster’s definition of the term economic, as well as if it falls in cat. 1 or 2.
“economic means production, distribution and consumption of commodities for which there is an establish and lucrative interstate market.”
step 4. If economic then apply wickard, if non-economic apply lopez. (see Raich)
NOTE: things that are criminal in nature also may have an effect on interstate commerce.
U.S. v. Morrison, U.S. (2000)
Court does NOT have power to pass violence against women act under the commerce class.
Although, violence against woman has an actual effect on interstate commerce, the court was hesitant to make getting over the wickard test very easy.
Gonzalez v. Raich, U.S. (2005)
Congress can prohibit MJ intrastate manufacture and possession even if the state approves it for medical purposes.
Also, remember:
If economic –> Wickard Test
If non-economic –> Lopez Factors
What is the dormant commerce clause?
At minimum, there is no such thing as a dormant commerce clause.
It is an interpretation of the commerce clause which applies and limits the actions of state government.
Basically, state and local laws are unconstitutional if they place an undue burden on interstate commerce. (this is not an express power.)
Look at whether the state law discriminates against out-of-staters OR does it treat in-staters and out-of-stater alike?
2-step approach to assess constitutionality of federal law.
Step 1: Is the law enacted within the scope of congress’ authority under the constitution? (e.g., commerce clause)
Step 2: Does the law violate some other constitutional provision or doctrine? (e.g., does the law violate the 1st amendment?)
