Contemporary Commerce Clause

Question 1

3 Broad Categories that Congress can regulate under the Commerce Clause

Answer 1

1. Channels of interstate commerce (roads, internet, waterways)
2. Instrumentalities of interstate commerce (trucks, cars, trains)
3. Anything that has a substantial effect on interstate commerce (could be things not commercial in nature)
   a. Factors test “weigh in the balance”

Question 2

4 Part Factor Test (Weight them to determine if can regulate)

Answer 2

1. Is the activity commercial in nature?
   a. Economic activity- Look for exchange, as in buying and selling.
2. Does commercial act contain a jurisdictional element?
   a. Look at the expressed phrase “in interstate commerce.” Or some such
3. Do Congressional findings support a connection between the regulated activity & interstate commerce
   a. Did Congress do it homework?
4. Is there a (close) connection between regulated activity and the interstate economy

• .Was Congress right in fact-finding?
• Courts decide if right

5.Does Congress Act intrude into an area of traditional state concern, so that it is obliterates the distinction between what is local and what is national?
(5th is a soft factor.)

Question 3

Lopez

Answer 3

1.Lopez not commercial in
nature

2. • When congress put # 2 in statute, lets Prosecutor prove it had substantial affect on interstate commerce. “If had substantial effect on interstate economy” then can prosecute.
     * virtually insures statute will be upheld b/c jurisdictional element
     i. More likely congress can Reg. but harder to say they cant regulate it.
3. Questioning Congress authority & ways it made its conclusion
   a. Courts are starting to see how Congress is making laws & why

b. Terms of Methodology Congress uses
i. Courts are less deferential

4. No, need something closer than 4 or 5 steps
   a. Losers= Congress, women that have been sexual abused.

Question 4

Morrison

Answer 4

1. No Commerce
2. No Jurisdictional Element: (Add ‘so long as effect on interstate commerce
3. Domestic violence hurts people (prevent from work/traveling)*
4. Not closely attached
5. Crime area is usually states power

Question 5

10th Amendment on Commerce Clause

Answer 5

a. When States act in market capacity, Congress can regulate State like any other participant
b. Congress cannot commandeer States or State officers to effect or enforce Federal Policy,

a. “Anti-Commandeering Principal”
i. Hurting states sovereignty
ii. 10th amendment bars.
iii. Cannot regulate states in their sovereign capacity or their regulatory capacity