Legislative Power - The Commerce Clause Flashcards
Current Commerce Clause
Generally, Congress has broad authority to enact legislation pursuant to the Commerce Clause. However, since Lopez, formalistic limitations have cabined Congress’ ability to pass anything even tangentially related to commerce as they used to under the toothless rational basis test.
Substantial Effects Test
Lopez Substantial Effects Test
- Channels - roads, ports
- Instrumentalities - trains, planes, things that move
- Activities - actions affecting interstate commerce even if not obvious.
Substantial Effects - Activities Factors
Activities Factors (non-dispositive multi-factor test)
- Economic activity
- Jurisdictional element - anything in the statutory language that implicates interstate commerce or has a nexus to interstate commerce specifically. Example: “possessing a gun near a school zone” has no jurisdictional element but “bringing a gun across state lines into a school zone” does.
- Absence of legislative findings.
- Too attenuated.
United States v. Lopez
Majority (Rehnquist) – Gun Free School Zone act struck down as unconstitutional because it did not pass the Substantial Effects test. The activity of possessing guns in a place does not affect commerce. It’s a criminal statute that has nothing to do with commerce. Congress could regulate virtually anything if this were allowed.
Concurrence (Thomas) – Substantial effects test is problematic. Commerce should just be limited only to encompass the buying and selling and possibly transportation of goods.
Dissent (Breyer) – The aggregate effects of guns on interstate commerce should be taken into account. A logical connection exists between gun regulations and interstate commerce. Breyer would have used the RATIONAL BASIS test which is basically impossible for the government to fail.
United States v. Morrison
Majority (Rehnquist) – VAWA was struck down as unconstitutional because it regulated non-economic conduct. It failed the Substantial Effects test. It wasn’t affecting economics, it didn’t have the jurisdictional element, it had findings but that’s not enough, and it was too attenuated.
Concurrence (Thomas) – Substantial effects test is still going too far.
Dissent (Souter) – Aggregate effects should matter. The right to determine what has a substantial effect on interstate commerce belongs to Congress, not the courts. The findings should matter too.
Dissent (Breyer) – The distinction between economic and non-economic is difficult to define. The majority disregards principles of federalism. The majority’s holding fails to set a standard for determining constitutional limits.
Gonzales v. Raich
Majority (Stevens) – Congress has the power to regulate local activities part of an “economic class” that could have a substantial effect on interstate commerce including homegrown marijuana. Like in Wickard, Congress seeks to regulate the national market for a commodity by controlling homegrown sources. Wheat or pot in the aggregate can have substantial effect.
Concurrence (Scalia) – Congress’ power to regulate activities having a substantial effect on interstate commerce is derived not only from the Commerce Clause but primarily from the Necessary and Proper Clause.
Dissent (Thomas) – Growing pot for home use is not commerce. Never bought or sold, no demonstrable effect on national market. Even amplified by the Necessary and Proper Clause, it has limits.
Dissent (O’Connor) – The majority’s decision violates Lopez and Morrison. It opens the door to improperly regulate any intrastate activity deemed essential to interstate commerce.
Historical Commerce Clause
4 eras
- Blind deference to Congress
- Courts skeptical of gov in early 1900s
- Court goes along with increased federal power to accomplish the “switch in time that saved 9” to avoid FDR’s court-packing plan. This involved a pivot to functionalism allowing expansive power (assessed the commerce clause under the toothless rational basis test).
- Lopez is a big wake up call where SCOTUS no longer lets the federal government do whatever it wants with the Commerce Clause. Introduced formalistic limitations.
Gibbons v. Ogden
There was a conflict between two steamboat operators, one who had a federal exclusivity right, and the other who had a state government exclusivity license. The Court held that the Commerce Clause and Supremacy clause establish dominance of the feds over traffic, navigation, etc affecting interstate commerce. Congress may regulate all commercial activities occurring between states but not activities occurring solely within one state’s borders.
Hammer v. Dagenhart
Congress tried to regulate child labor indirectly through prohibiting goods made by child labor to be shipped interstate. Court said no, child labor is a local issue.
NLRB v. Jones & Laughlin
Court flipped here after Hammer, instead said the overall effect of labor stoppages on interstate commerce involves labor relations, because strikes could stop manufacturing.
Wickard v. Filburn
Guy tried to grow homegrown wheat in excess of the quotas, Court said gov can regulate local activity if it exerts a substantial economic effect on interstate commerce. They said that by growing his own wheat, he decreased the amount of wheat purchased in the market and therefore hurt Congress’ attempted price controls of wheat. The aggregate effect won out for the Court.
Heart of Atlanta Motel v. United States
The Court established Commerce Clause authority on the basis that hotels and restaurants are highly related to interstate travel, and because the test for the Commerce Clause is simply whether the activity sought to be regulated is ‘commerce which concerns more States than one’ and has a real and substantial relation to the national interest, it is easy to make the argument that people traveling between states, who are restricted from finding places to stay and eat during travel, affects interstate commerce and therefore justifies preventing discrimination by private businesses.
Katzenbach v. McClung
Katezenbach v. McClung – Ollie’s BBQ refused to serve African Americans. Half of the food they sourced moved in interstate commerce. Court ruled that Congress may regulate the discriminatory policies of restaurants through Title II of the Civil Rights Act if those policies have a substantial effect on interstate commerce.
Hypo 1: What if Ollie’s BBQ sourced all food locally and only served in-state customers?
Answer: Restaurants that don’t serve people of any other state affects interstate commerce and impedes travel in the first place, so therefore it should be disallowed.
Hypo 2: Ollie’s BBQ is now entirely local far away from a dirt road and say it’s only ever served locally and refuses outsiders. Is it now affected?
Answer: Maybe still is, because on principle it’s affecting anyone who happens to visit, which affects the free movement of persons.
The Commerce Clause vs. The Anti-Commandeering Doctrine
Under its commerce power, Congress may regulate States’ activities as States, provided that the regulation does not violate the anticommandeering doctrine, i.e., it does not require the State to enact any laws or regulations and does not require State officials to assist in the enforcement of federal statutes regulating private individuals. Reno v. Condon (2000) (refining the anticommandeering doctrine, which follows New York v. United States and Printz v. United States). The national political process is deemed to otherwise insulate States from the reach of federal interference under the Commerce Clause.
Can the Commerce Power be used to make individuals engage in commerce?
No, under its commerce power, Congress may not regulate commercial inactivity, i.e., Congress may not compel individuals not engaged in commerce to purchase unwanted products. NFIB v. Sebelius (2012).
