Necessary and Proper Clause, and the Commerce Clause

Question 1

McCulloch v. Maryland

Answer 1

Let the end by legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

Question 2

What is the necessary and proper clause?

Answer 2

Grants the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government. Ensures that the federal government has the means to fully exercise the specific grants of power vested in the Constitution.
Not a limit on enumerated powers of the federal government, but a grant of power
Clause is a “means” power, and the other enumerated powers/goals of the Constitution are “ends” powers

Question 3

Test for necessary and proper

Answer 3

Essentially, the means must be rationally related to the ends:

1. Is it necessary and proper?
   a. Necessary does not mean absolutely necessary; it means any means calculated to produce the end; means convenient; does not limit the government to the best means, or only one means
   b. Proper means it must not undermine the structure of the government (i.e., cannot violate the separation of powers of federalism)
2. Is it furthering one of delegated powers/ends?
   a. Can only be used for legitimate ends, i.e., can only be used to accomplish delegated powers

Question 4

Relationship between the supremacy clause and the necessary and proper clause

Answer 4

If Congress passes a law using the necessary and proper clause that conflicts with state law, federal law will preempt the state law due to the supremacy clause

Question 5

Define preemption

Answer 5

Whether the power exercised by the federal government is express or implied, the result is a preemption of state law due to the Supremacy Clause

Question 6

Types of preemption

Answer 6

Express and implied (field and conflict)

Question 7

Define express preemption

Answer 7

The law expressly states that all state law to the contrary is preempted

Question 8

Define implied preemption

Answer 8

Preemption is implied by the exercise of federal power

Question 9

Define field preemption

Answer 9

The scheme of federal regulations is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it

Question 10

Define conflict preemption

Answer 10

Where compliance with both federal and state regulations:

1. is a physical impossibility; OR
2. where state law stands as an obstacle to the accomplishment or execution of the full purposes and objectives of Congress (the key here is the intent of Congress, which must be clearly articulated in order for the Court to preempt the state law)

Question 11

What can Congress regulate under the Commerce Clause?

Answer 11

1. Channels of interstate commerce (e.g., roads, canals, railroads)
2. Instrumentalities of and persons/things in interstate commerce (e.g., cars, trains, articles traveling in commerce)
3. Economic activity that substantially effects interstate commerce
   a. Aggregation principle applies here: Congress may regulate minor effects on interstate commerce if they would have a substantial effect in the aggregate
   b. What is an economic activity? Court says the activity must either be economic in nature, or the regulation of the activity is an essential part of a larger regulation of economic actiivity

Question 12

Lopez factors for determining whether a statute attempting to regulate a local activity (third prong) falls within the Commerce Power:

Answer 12

1. Is it an economic or non-economic activity?
2. Does the statute have a jxal element? (statute should have a provision relating to interstate commerce to put a limit on the statute)
   Legislative findings discussing the effect on interstate commerce (there are not binding, but the Court uses the discussions of Congress in figuring out the connection between the activity and interstate commerce)
3. Direct effect on commerce (there must be a direct, rather than attenuated, effect on commerce)

Question 13

Gibson v. Ogden

Answer 13

Commerce among the states means commerce between the states, but commerce does not stop at the border of each state, but may be regulated within the borders of states
The commerce power doesn’t extend to intrastate commerce, i.e., commerce wholly within a state, commerce between different parts of the same state, or commerce that does not extend to or affect other states
Commerce power does not interfere with state’s police power

Question 14

U.S. v. E.C. Knight Co.

Answer 14

Commerce power doesn’t extend to manufacturing, as this was a local activity reserved to regulation by the police power of the state
Commerce succeeds manufacture, and is not a part of it
Beginning of direct/indirect effect distinction to determine when Congress may regulate under the Commerce Clause

Question 15

Champion v. Ames

Answer 15

Police power=health, safety, welfare, and morals
Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of the Supreme Court to say that such an act was not the law of the land
Congress cannot use means powers to accomplish goals not delegated to the federal government
However, ends powers can have any object, goal, or motive, because that power is delegated for the federal government to use in its entirety; can use ends powers in any way that it not unconstitutional

Question 16

Wickard v Filburn

Answer 16

Wheat case
Substantial effects test–Court officially transitioned from the direct/indirect effect test to the substantial effects test, meaning Congress can regulate any substantial effect on interstate commerce
Aggregation principle–Congress may regulate minor effects if it would have a substantial effect on interstate commerce in the aggregate

Question 17

U.S. v. Lopez

Answer 17

Possession of a gun is not sufficiently related to interstate commercial, and is unconstitutional use of commerce power
Nature of the activity being regulated (economic?)–legislation regulating activities will be sustained if it is an economic activity substantially affecting interstate commerce. The Court suggest economic activity as a threshold requirement, requiring the activity to either be economic in nature or the regulation is an essential part of a larger regulation of economic activity
Aside from being economic, the activity must also have substantially affected interstate commerce. Cannot be a mere effect, and Court will not defer to judgment of Congress in determining the effect on interstate commerce. In determining substantial relationship requirement, Court will consider whether statute has express jxal element, and will consider congressional findings concerning the effects of the activity on interstate commerce

Question 18

Gonzalez v. Raich

Answer 18

Congress may regulate aspects of an activity that are not interstate in character if Congress concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity
When Congress regulate an economic activity under a comprehensive regulatory scheme, it may also regulate non-economic aspects of that activity

Question 19

Black letter law for the dormant commerce clause

Answer 19

1. if the state law facially discriminates against interstate commerce, it is per se invalid
2. if it does not facially discriminate, but still causes an incidental burden on interstate commerce, the Court applies the Pike balancing test:
   a. is the burden imposed on such commerce clearly excessive in relation to the putative local benefits?
   “Discrimination” means different treatment of in-state and out-of-state economic interests. Discriminatory laws motivated by simple economic protectionism are subject to a virtually per se rule of invalidity
   Per se rule can only overcome by a showing that the state has no other means to advance a legitimate public purposes

Question 20

Market Participant Doctrine

Answer 20

1. am I a market participant?–if yes, no analysis needed
2. No, go through dormant commerce clause analysis
   State may choose, when it is acting as a market participant, to facially discriminate in the conduct of its business to choose to buy from or sell to its citizens exclusively
   Different than a regulatory role, where the state is telling its own citizens who it can or cannot buy from or sell to