Legislative Powers - The Commerce Clause, 4th Era (1990 to present)

Question 1

What was the main argument and method U.S. v. Lopez?

Answer 1

Pragmatic - Can’t allow Congress the power to do anything and everything by expanding the Commerce Clause

Question 2

What did U.S. v. Lopez do for the Commerce Clause?

Answer 2

Brought the modern era of the Commerce Clause and established narrowing Congress power with it again

Question 3

What case was the modern turning point for the Commerce Clause?

Answer 3

U.S. v. Lopez

Question 4

What are the 3 circumstances (U.S. v. Lopez established) when Congress can now regulate commerce under the Commerce Clause?

Answer 4

1. The CHANNELS (streets/highways/waterways/bridges) of interstate commerce
2. The INSTRUMENTALITIES (airplanes, boats, trains, trucks) of interstate commerce, including the persons and things (seat belts on airplanes and life preservers on boats) in interstate commerce
3. economic or commercial INTRAstate activity SUBSTANTIALLY AFFECTING INTERstate commerce

Question 5

What are the 3 instances (U.S. v. Lopez established) when Congress can regulate an INTRAstate commerce activity that substantially affects INTERstate commerce?

Answer 5

1. When there’s an ECONOMIC ACTIVITY that substantially affects interstate commerce by itself or in the aggregate
2. When Congress has a RATIONAL BASIS TO BELIEVE an activity could substantially affect interstate commerce
3. When Congress includes an EXPRESS JURISDICTIONAL NEXUS to interstate commerce in an Act

Question 6

When may Congress regulate non-economic activities? (U.S. v. Lopez established)

Answer 6

Only where the failure to do so could undercut its regulation of interstate commerce - a jurisdictional nexus

Question 7

Does Raich follow or modify Lopez?

Answer 7

Follows but distinguishes - unlike the activity in Lopez (Gun Free School Zone Act), the activities regulated by a government agency like the DEA are quintessentially economic

Question 8

What was the primary issue in U.S. v. Lopez?

Answer 8

12th grader was arrested for possessing a firearm in school - against the Gun Free School Zone Act that was enacted under the Commerce Clause

Congress regulating interstate commerce via economic activity - Does possessing a gun qualify as economic activity?

Question 9

What was the holding in U.S. v. Lopez?

Answer 9

The Gun Free School Zone Act enacted under the Commerce Clause exceeded Congress’ authority to regulate commerce

Merely possessing a gun does not qualify as economic activity - “The possession of a gun in a school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce”

Question 10

What was the case where it was determined that Congress had exceeded its authority in almost 60 years since Carter Coal?

Answer 10

U.S. v. Lopez

Question 11

Can Congress regulate non-economic activities? (U.S. v. Lopez)

Answer 11

yes - Only where the failure to do so could undercut its regulation of interstate commerce

Question 12

What was the rule that came out of U.S. v. Lopez?

Answer 12

Congress may regulate non-economic activities only when the failure to do so could undercut its regulation of interstate commerce

Question 13

According to U.S. v. Lopez was there any rational basis of believing possession of a gun could substantially affect commerce?

Answer 13

No, there were no findings regarding the effect of gun possession and its effect on commerce

Question 14

What are the 2 constitutional principles that Justice Kennedy wrote about in his concurrence to U.S. v. Lopez?

Answer 14

1. Federalism

2. the 10th Amendment

Question 15

What is Justice Kennedy’s rationale for Federalism in his concurrence in U.S. v. Lopez?

Answer 15

That two governments (Fed + State) afford more liberty than one

If the Federal Government gets too big, we the people won’t know who to hold accountable - the federal government or the state…

Question 16

According to Justice Kennedy’s concurrence in U.S. v. Lopez is education a traditional concern of the federal government or the states?

Answer 16

The States

Question 17

If a State or municipality determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises - are the reserved powers of the States sufficient to enact those measures or should Congress take action?

Answer 17

The reserved powers of the states are sufficient to enact those measures.

Question 18

What was the primary issue in Raich?

Answer 18

Federal Law, the Controlled Substances Act states that one can not manufacture or possess any controlled substance (marijuana here)

However, state law (California Compassionate Act) authorized the use and cultivation of medical marijuana when prescribed by a doctor.

Question 19

Is production an economic activity?

Answer 19

yes

Question 20

When does Congress have power to regulate purely local activity? (established in Raich)

Answer 20

Congress has the power to regulate purely local activities that are part of an ECONOMIC “class of activities” when there is a RATIONAL BASIS TO BELIEVE they will have a SUBSTANTIAL EFFECT on interstate commerce

(Commerce Clause + N & P Clause)

Question 21

Can the N &P Clause and the Commerce Clause work together or are they always separately applied?

Answer 21

They can work together

Question 22

Under the Commerce Clause can Congress regulate the selling of State A’s drugs into State B?

Answer 22

Yes, this is part of a comprehensive economic regulation

Question 23

Under the N & P Clause can Congress prohibit the production and possession of drugs in a state?

Answer 23

Yes, this is part of a comprehensive economic regulation

Question 24

How do the Commerce Clause and the N & P Clause work together in the Raich holding?

Answer 24

They work together as part of a comprehensive economic regulation on drugs:

Under the commerce clause Congress can regulate the selling of State A’s drugs into State B

Under the N & P Clause Congress can prohibit the production and possession of drugs in a state
(congress may regulate non-economic activities only where the failure to do so would undercut its regulation of interstate commerce)

Question 25

Does federal law trump state law as its related to drug matters?

Answer 25

Yes, via the Supremacy Clause

Question 26

Is Raich analogous or distinguished from Wickard?

Answer 26

It’s analogous to - where a class of activities is regulated and that class is within reach of federal power, state courts have no power to excise, as trivial, individual instances of the class

Question 27

What was the primary issue in U.S. v. Morrison?

Answer 27

That a congressional act provided civil remedy/protection to an abused woman

Question 28

What was the holding from U.S. v. Morrison?

Answer 28

The congressional act providing a civil remedy/protection to an abused woman under the commerce clause was unconstitutional because there was no commerce involved and therefore Congress lacked the authority to enact a civil remedy

Question 29

What was the holding in Raich?

Answer 29

That a congressional act (here the Controlled Substances Act) criminalizing the manufacturing, distribution, or possession of marijuana for medical purposes is constitutional

Question 30

What were the primary takeaway’s from Raich?

Answer 30

The power of the Supremacy Clause - Federal law overriding state law

Congress needs only a RATIONAL BASIS to regulate Commerce - even though something never enters the stream of commerce, if it would significantly affect interstate commerce then congress may regulate purely local activities that are economic that may have a substantial effect on interstate commerce - controlling supply and demand

Question 31

Is possession of a gun commercial or economic activity that could be regulated by Congress through the Commerce Clause?

Answer 31

No - and there would be NO RATIONAL BASIS to connect it to the stream of commerce as to significantly affect interstate commerce

Question 32

What does U.S. v. Lopez determine about Wickard’s aggregate rule?

Answer 32

The aggregate rule to regulate commerce can ONLY be used when there is commercial or economic activity

Question 33

What are the 4 things to look for in order for an Act by Congress to be determined Constitutional under the Commerce Clause?

Answer 33

1. For the Act to be part of a larger regulatory scheme
2. A connection with interstate commerce
3. There have been statutes similar to it in the past
4. Looking at the degree to which the Act encroaches on State powers

Question 34

Do gendered motivated crimes, like abuse, count as economic activity under the commerce clause?

Answer 34

No

Question 35

In the Raich dissent - which justice said that states act as laboratories?

Answer 35

Justice Sandra Day O’Connor

Question 36

What are Justice O’Connor and Justice Thomas’ arguments in their dissent in Raich?

Answer 36

That states have power to determine criminal law and they protect the health and welfare of its citizens

Question 37

What was the rule of law that came from U.S. v. Lopez (1995)?

Answer 37

Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school.

Question 38

What were the rules (2) of law that came from U.S. v. Morrison (2000)?

Answer 38

(1) Congress does not have the authority under the Commerce Clause to regulate violence against women because it is not an economic activity.
(2) Under § 5 of the Fourteenth Amendment, Congress may only regulate the discriminatory conduct of state officials, not private actors.

Question 39

What was the rule of law that came from Gonzales v. Raich (2005)?

Answer 39

Congress may regulate the use and production of home-grown marijuana as this activity, taken in the aggregate, could rationally be seen as having a substantial economic effect on interstate commerce.