Constitutional Law I

Prof. Manheim
Spring, 2005

THE COMMERCE CLAUSE

The Congress shall have Power ... To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes

FEDERAL law purporting to regulate

interstate commerce

See flowchart on
Dorment Commerce
Clause

STATE laws
regulating
commerce

Note the
difference

Examine the object governed by the law

Historic inquiry

Modern inquiry (Lopez categories)

Does the object being

regulated involve a
"commercial activity"?

Channels of IC

Is it commerce?

Is it "interstate"?
[foreign, tribal]
or local

Is the object/activity
"in" or does it "affect"
interstate comerce?

Is it being
regulated?

Some cases suggested

prohibition was not
"regulation"
Broadly Construed
(Post New-Deal)

The consequence of an affirmative answer to

these questions is to enhance federal power at
the expense of the states

current
test

Substantial relation
to IC

but
ask

jurisdictional
element

economic
activity

not dispositive

without one of these, S.Ct. will

decide sufficiency of nexus
with interstate commerce

US v. Morrison

The consequence of a negative answer to these

questions is to enhance state power at the
expense of the federal government

NATIONALIST VISION

The law is (usually)

within Congress'
commerce power

congressional
findings

Strictly construed
(Dual Federalism)

Competing Visions
of Federalism

Instrumentalities
of IC

STATIST VISION

Does the federal

law regulate the
states themselves?

Can't
tell
Gregory v.
Ashcroft

No, it regulates
private parties

Yes, states are

subject to the law

The federal law

is constitutional

Consider the
TENTH
AMENDMENT

Private parties
must comply
with the law

The law (usually)

exceeds Congress'
commerce power

Note the similarity

The federal law is

unconstitutional
because it
invades the
reserved power
of the states

State law may be

PREEMPTED

Only the states can

regulate this subject

If there is also a state law on the subject