Commerce Clause

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Art.1 §8

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Congress shall have the power to regulate Commerce with foreign Nations and among the several states and with the Indian tribes

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3 part test of Lopez for when Congress can act under Commerce Clause

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"Medicinal Marijuana

Congress can regulate the channels for interstate commerce (where it occurs... the internet, the highways, etc)

The instrumentalities of interstate commerce (The persons or things of interstate commerce...trucks, planes, telephones, internet, radiowaves, electricity, stock, internet, cattle, people. All because they go over interstate lines)

Activites that effect interstate commerce (Wickards... wheat farmers grow for their own consumption... effects interstate commerce on a macro scale)

Congress cannot regulate noneconomic activity by stating that a noneconomic activity effects commerce (Morrison, women’s violence)"

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Questions for Commerce

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"Is congress regulating economic activity?

If so, is there a substantial effect on economic activity?"

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10th Amendment

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"Congress cannot compel legislative or regulative activity (NY v US 1992, Federal low level radioactive act. Congress can give a carrot, but not punish for not enacting a statute) (Prince, gun background checks, congress was commandeering state freedom)

Congress may prohibit harmful commercial activity by state governments (Reno, 2000... Federal driver’s privacy (Licenses have addresses or ssn taken. States cannot sell that info.)"

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Congress’s powers under 14th Amendment

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Section 5- Congress cannot create new rights, or expand the scope of rights. (City of Bourne- Congress can only prevent violation of rights already existing)

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Gibbons v Ogden

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New york grant of a monopoly to steamboat operators was at odds with a federal regulation of commerce. π had an injunction placed that barred ∆ (licensed under US laws) from operating in the waters
US commerce law always trumps state law and state law must yield. Congress alone has the exclusive power to regulate interstate commerce
“Commerce is traffic, but it is also more... it is intercourse”

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Hodel (1981)

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Congress cannot regulate state governments, but it can regulate private conduct. To violate the 10th amendment, the federal government has to impair the state’s ability to structure integral operations of government. There are some areas of law that the Government has a significant state interest in protecting
Regulation of “States as States” is the key phrase... the actual working of the government can’t be regulated, but the underlying political subsets can be (regulatory agencies by example)

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Garcia v San Antonio Metro. Transit (1985)

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Overrules National league of cities, and national minimum wage and overtime requirements can apply. There is nothing inherently destructive of state sovereignty in the act. The Commerce Clause does not provide any special limitations on Congress’s actions with respect to the states.

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US v Lopez

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Gun free school zones act of 1990 (prohibiting a gun from being carried within so many feet of the campus) is outside congress’s regulatory powers.
"In order for the commerce clause to grant power, it must relate to
A channel of interstate commerce, or
an instrumentality of interstate commerce
or an activity having substantial effect on interstate commerce.

This activity had no effect on commerce, even though it involved an object sold in commerce."

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US v Morrisson (2000)

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Woman (college student) sues under Violence against Women act after being raped, and her college not holding up a expulsion of the man who did it
The act is not viable under the commerce clause. The activity has to be related and have an SUBSTANTIAL EFFECT to an economic interests. Violence against women, like guns in school, is not economic

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Gonzales v Raich (2005)

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The federal government can criminalize private marijuana growing and medical usage even it that is at odds with state law. This is because this would have a significant effect of the flow of Marijuana commerce across state borders

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Regulation of private behavior

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"Initially Congress could not regulate private behavior, but the court gave way to using the 13th and 14th amendments to do so. This now includes discrimination and weaves it into the 13th Amendment because the 13th grants all persons the same rights under law

The government can also punish for any “conspiracy” that interfere with 14th Amendment rights"

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U.S. v. Morrison

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Congress cannot grant civil damages under the Violence Against Women act under the 14th Amendment. It is not affecting interstate commerce (it was a stretch to make that argument), It can address discriminatory conduct through the 14th, but if the congressional laws are directed toward conduct of private persons, the laws are outside Congress’s limits. They have to seek civil damages in state court.

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City of Boerne v Flores (1997)

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The religious freedom restoration act exceeds Congress’s enforcement power under the Due Process Clause of the 14th Amendment. Congress cannot redefine or provide guidelines of interpretation to what constitutional rights are (court’s job basically).

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Dormant Commerce Clause (Negative Commerce Clause)

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State and local laws are unconstitutional if they place an undue burden on interstate commerce. You cannot place protective measures for local business against free trade. This is not a national tarriff, but it affects citizens v. citizens and is not allowable

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How to determine use of Negatice CC or CC

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If state or local government does something, use negative clause

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Privileges and Immunites clause (Article 4)

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No state cannot deny a citizen of another state the privileges and immunities it gives its own citizens (non-citizens)

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Privileges OR immunities clause of 14th Amendment

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Always a wrong answer unless the question involves the right to travel. Applies to new residents and own citizens

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Areas congress has not regulated

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If congress has not regulated an aspect of interstate commerce, the states can regulate that so long as it is reasonable or for safety reasons (Truck widths in South Carolina). It must be related to a state purpose and be nondiscriminatory.

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Balancing test of interstate commerce

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balance the nature and extent of the burden against interstate commerce that would be imposed by a state statute against the benefits, merits, and purposes to be derived from it.

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Laws restricting in state to in state facilities

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the distinction between state run and private facilities is significant. When the state creates facilities, they benefit the state in most cases. Additionally, the dormant commerce clause affects discrimination regarding out of state citizens, rather than in state

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Restrictions of moving materials out of state for sale

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"goes against the intent of the commerce clause. The state cannot prohibit actors from shipping out of state for sale.
Look at if it is discriminatory against interstate commerce, whether it serves a legitimate local purpos, and whether alternative means could promote the interest addressed by the statute"

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facially neutral laws

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if a law is on its face neutral, but has discriminatory effects, it is unconsitutional. (apple classification markigs in NC required only USDA symbol… Washington had a more stringent classification symbol… increased cost of doing business in NC)

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facially neutral laws

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if a law is on its face neutral, but has discriminatory effects, it is unconsitutional. (apple classification markigs in NC required only USDA symbol… Washington had a more stringent classification symbol… increased cost of doing business in NC)

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dormant and per se invalidity

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a law is per se invalid if it directly discriminates against out of state actors or sales (uniform levee that benefits only in state producers)

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Health and safety

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a state may not discriminate against out of state actors to promote health and welfare if a reasonable alternative exists that does not discriminate and are adequate alternatives

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When no alternative exists

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states can regulate and restrict out of state commerce if there is no alternative that could achieve the legitimate local interest attempted to be protected. (restricitons on out of state baitfish)

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Gibbons v Ogden

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Congress has the power to regulate interstate commerce and the means of interstate commerce, through interstate highways, navigation on rivers. All steps in chain of commercialization process.

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Wickard v. Filburn

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If has affect on interstate commerce, even if intrastate than Congress may regulate. Economic measure of reach of power granted in Commerce Clause accepted questions fed power and consideration of production of economic effects cannot be foreclosed by be called indirect affects. Power to regulate includes power regulate prices commodities dealt in and practices affects prices.


(Wheat grown at home)

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Synthesized modern commerce clause rule

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Commerce includes all stages of business and Congress may regulate any activity that has substantial effect on interstate commerce. Congress may reach indirect effects on commerce if it exerts substantial economic affect on interstate commerce, irrespective of whether previously defined as direct v. indirect, rationally related to end, and must have some commercial purpose.

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Current rule of necessary and proper clause in regards to commerce

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under necessary and proper clause, Congress can regulate local activities if it can rationally conclude activity has substantial effect on interstate commerce. Courts generally defer to congressional judgment.

a. Is assessing effect, Congress may consider cumulative or aggregate impact of all regulated activities.

b. Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if it concludes failure to regulate class of activity would undercut regulation of interstate market in that commodity.