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

Note the difference

STATE laws regulating commerce

See flowchart on Dorment Commerce Clause

Examine the object governed by the law

Historic inquiry Does the object being regulated involve a "commercial activity"?

Modern inquiry (Lopez categories) Channels of IC
current test

Is it commerce?

Instrumentalities of IC Substantial relation to IC

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

Is the object/activity "in" or does it "affect" interstate comerce?
congressional findings not dispositive

Is it being regulated?

Some cases suggested prohibition was not "regulation"
Broadly Construed (Post New-Deal) Strictly construed (Dual Federalism)

jurisdictional element

economic activity

without one of these, S.Ct. will decide sufficiency of nexus with interstate commerce

US v. Morrison

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

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

NATIONALIST VISION

STATIST VISION

The law is (usually) within Congress' commerce power

but ask

Does the federal law regulate the states themselves? No, it regulates private parties

Can't tell
Gregory v. Ashcroft

The law (usually) exceeds Congress' commerce power

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 Only the states can regulate this subject

The federal law is constitutional

Private parties must comply with the law

State law may be PREEMPTED If there is also a state law on the subject

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