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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 pur- porting to regulate interstate commerce

FEDERAL law pur- porting to regulate interstate commerce

Note the

difference

to regulate interstate commerce Note the difference Is it commerce? STATE laws regulating commerce Historic
Is it commerce?
Is it commerce?

STATE laws

regulating

commerce

Historic inquiry

See flowchart on Dorment Commerce Clause
See flowchart on Dorment Commerce Clause

See flowchart on

Dorment Commerce Clause

See flowchart on Dorment Commerce Clause
See flowchart on Dorment Commerce Clause
inquiry See flowchart on Dorment Commerce Clause Examine the object governed by the law Modern inquiry

Examine the object governed by the law

Modern inquiry (Lopez categories)

Does the object being regulated involve a "commercial activity"? Channels of IC current Instrumentalities
Does the object being
regulated involve a
"commercial activity"?
Channels of IC
current
Instrumentalities
test
of IC
Is the object/activity
"in" or does it "affect"
interstate comerce?
Substantial relation
to IC
congressional
jurisdictional
economic
Some cases suggested
prohibition was not
"regulation"
findings
element
activity
not dispositive
without one of these, S.Ct. will
decide sufficiency of nexus
with interstate commerce
Strictly construed
US v. Morrison
(Dual Federalism)
Competing Visions
of Federalism
The consequence of a negative answer to these
questions is to enhance state power at the
expense of the federal government
STATIST VISION
Can't
tell
The law (usually)
exceeds Congress'
commerce power
Gregory v.
Ashcroft
Yes, states are
subject to the law
Consider the
TENTH
AMENDMENT
Note the similarity
The federal law is
unconstitutional
because it
invades the
reserved power
of the states

Does the federal law regulate the states themselves?

states Does the federal law regulate the states themselves? State law may be PREEMPTED Only the

State law may be

PREEMPTED

State law may be PREEMPTED

Only the states can

regulate this subject

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

Is it "interstate"? [foreign, tribal] or local
Is it "interstate"? [foreign, tribal] or local
Is it "interstate"? [foreign, tribal] or local
Is it "interstate"? [foreign, tribal] or local Is it being regulated? Broadly Construed (Post New-Deal) The

Is it being regulated?

Is it being regulated?
Is it being regulated?
Is it being regulated?

Broadly Construed

(Post New-Deal)

Is it being regulated? Broadly Construed (Post New-Deal) The consequence of an affirmative answer to these
The consequence of an affirmative answer to these questions is to enhance federal power at
The consequence of an affirmative answer to these questions is to enhance federal power at

The consequence of an affirmative answer to these questions is to enhance federal power at the expense of the states

NATIONALIST VISION

NATIONALIST VISION

NATIONALIST VISION
of an affirmative answer to these questions is to enhance federal power at the expense of
of an affirmative answer to these questions is to enhance federal power at the expense of
of an affirmative answer to these questions is to enhance federal power at the expense of
of an affirmative answer to these questions is to enhance federal power at the expense of
of an affirmative answer to these questions is to enhance federal power at the expense of
of an affirmative answer to these questions is to enhance federal power at the expense of
The law is (usually) within Congress' commerce power

The law is (usually) within Congress' commerce power

but

ask

No, it regulates private parties The federal law is constitutional
No, it regulates
private parties
The federal law
is constitutional

Private parties must comply with the law

The federal law is constitutional Private parties must comply with the law If there is also

If there is also a state law on the subject