NCP: Retrenchment

Question 1

Retrenchment

Answer 1

a) In 1971, Congress had virtually no limits under the Commerce Clause
i) Small exception, one man mine in Morton v. Bloom, judge determines Bloom was not intended to be reached by the mining legislation. But it is not a constitutional decision, it is an interpretive one.
ii) Otherwise anything goes.
(1) “Where we find that legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” - i.e., if Congress says it affects interstate commerce, then it affects interstate commerce. (Katzenback v. McClung)
b) The present: Begin to see, starting with Lopez, degree of judicial reaction against the anything goes idea.

Question 2

United States v. Lopez (1994)

Answer 2

no guns in school zone law found to be unconstitutional.

i) Rule: Four factors in determining if Congress has the commerce power to pass an act. none are dispositive, all are relevant.
(1) Trade matters: existence of a commercial trade/business
(2) Expressed jurisdictional element: is there a requirement that the particular element be in interstate commerce and a requirement to prove it. specific statement linking to interstate commerce
(a) Nothing in the guns in school act that said anything about a gun in school affecting interstate commerce
(3) Have there been explicit findings on this issue by Congress? Congress actually has to make them, no presumption as before.
(4) Court will engage in own determination of the effects the activity has on interstate commerce.

Question 3

United States v. Morrison (2000)(p. 108)

Answer 3

Violence against women act provided federal civil remedy for victims of gender motivated violence.

i) held the Act was not a constitutional exercise of Congress’ commerce power because it didn’t regulate an activity that substantially affected interstate commerce.
(1) SCOTUS further defined the aggregate effects test (see Wickard) noting that intrastate activities must be considered in aggregate only if the activities themselves are economic in nature. Less deference to Congressional findings.
ii) Rule: Look to whether there is commercial motivation or something else.
(1) Like Lopez, the fact that the motivation was not primarily an economic or commercial or business concern counts against congressional power.

Question 4

Gonzales v. Raich (2005)(p.121)

Answer 4

Upheld regulation on local cultivation and use of marijuana even when in compliance with state law because aggregation: part of a larger business.
i) Congress has regulatory authority over interstate activities that are not themselves part of interstate commerce even when they do not themselves substantially affect interstate commerce if they are an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

Question 5

7. Historical footnote, mostly without doctrinal effect:

Answer 5

a) Difference between internal and external limitations on Congressional powers.
i) Does the 10th amendment which secures certain powers to the states add anything to the commerce clause? Does it operate as an independent constraint as what congress can otherwise do?
(1) Darby said it is merely a truism.
ii) In 1976, National league of cities v. usury: court said congress could not set national min hourly wages and apply those laws to the state’s in the state’s own governmental operations. This was the law for 9 years, but gets overruled in Garcia (make up of the court changes).
(1) BUT: Prinz case: the fed gov cannot commander state officials to enforce federal law.