Legislative Powers Flashcards
Commerce - General Rule
Congress has broad plenary authority to regulate commerce between the states. Commerce means intercourse between the states.
Thomas View
(Thomas has a very narrow scope – bartering and exchanges envisioned by the framers)
Perez Categories
Perez breaks down this broad authority into three categories
o The channels of commerce
o The instrumentalities of commerce
o Activities having a substantial effect on interstate commerce
Third Prong Rule
Lopez and Morrison limited the commerce power, so courts should first consider whether the activity is economic or non-economic. As done in Wickard, aggregation is only appropriate when an economic activity is regulated, especially if its an area of traditional State regulation.
Economic Activity
If it is an economic activity, courts will aggregate all similarly situated individual’s activity for cumulative impact to find a substantial effect.
Non-economic Activity
Under Morrison, aggregation is likely unavailable for noneconomic activity. Mere possession is not an economic activity.
Inactivity (commerce power)
The Commerce Power cannot be used to regulate inactivity. The power to regulate commerce presupposes the existence of commercial activity to be regulated.
Step Two of Commerce
Congressional findings of an effect on commerce are useful but not binding.
Step Three of Commerce
If this is a traditional area of state regulation, courts may find this to be outside the commerce power.
Step Four of Commerce
State if the requirement in the statute is nec and proper part of the statutory scheme to [enter reason for scheme]
Jdx Hook
Under existing case law, it is dispositive on the validity of a statute if that statute has a jurisdictional hook. It requires a plaintiff to prove that the regulated good affected interstate commerce.
Statutory Scheme in Commerce
If a regulated activity is part of detailed statutory scheme, Congress may have broader power to reach intrastate and non-economic activities.
Nec and Proper
The Necessary & Proper clause allows Congress to enact all legislation that is appropriate or conducive to achieve its enumerated ends.
Rational Basis Test
The rational basis test considers whether the statute is a means that is rationally related to the implementation of a constitutionally enumerated power.
Implied Powers – Nec and Proper
Congress is not limited to express Article I powers, some may be implied. Implied powers can have other powers implied from them so long as there is a rational relation to the original enumerated power.