Is Congress regulating Channels of Interstate Commerce? (e.g., things reasonably related to highways, airways, waterways, hotels.) (Lopez; Morrison.

)

General Considerations: (1) Traditional zones of state interest (a factor in Morrison, maybe not anymore); (2) Breyer in Morrison: “[W]hy should we give critical constitutional importance to the economic, or noneconomic, nature of an interstate-commerceaffecting cause?”

YES NO

Is Congress regulating Instrumentalities of Interstate Commerce? (e.g., things that are used as a means of carrying out IC (e.g., cars), or articles actually moving through.) (Lopez; Morrison.)

YES Yes Commerce Clause Authority YES

NO
Is Congress regulating Activity with Substantial Effects on Interstate Commerce? (e.g., Labor Relations, Farmer Filburn's Commercial Wheat, Restaurants.) Note: Aggregation okay (Wickard); this is a judicial determination. (Morrison)

Is Congress Regulating "Economic Activity,"in that it involves the production, sale, or consumption of goods? (Raich Definition, others may be broader if the Raich definition is dicta)

YES

NO
Is the regulation an "(1) essential part of a (2) larger regulation of economic activity that could be undercut unless such intrastate noneconomic activities were included in the scheme?" (Raich and Lopez dicta) The appropriate level of judicial scrutiny as to "essential" is unsettled. See Scalia's Raich dissent, equating to "necessary and proper. (McCuloch)

See Lopez, Morrison, and possibly Raich.

YES
Option 1: This inquiry may operate as a substitute for the "substantial effects" test, and thus require "economic activity." See Raich. Option 2: This result may be justified by a reading of Raich as articulating wholly alternativee bases of Commerce Clause power--(1) Regulatory Scheme and (2) Intrastate Economic Activity with Substantial Effects

NO

No Commerce Clause Authority