Commerce Clause - Lopez/Morrison/Raich Forum

[24secure]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

[bernie shmegma]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

still a 0L, but look at South Dakota v. Dole.

[bernie shmegma]

The scope of the Commerce Clause has been widened and abused since the New Deal era. What you think constitutes Commerce is actually a lot more flexible than that in reality. As for what it SHOULD be, is another story. So that third criteria, is basically just that. Read O'Connors opinion in particular when reading dole. That is your example of using this third ambiguous qualification for regulating commerce. Its BS and F's up the whole system of federalism.

[24secure]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

still a 0L, but look at South Dakota v. Dole.

that's a taxing and spending clause case. doesn't apply.

[Aqualibrium]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.


Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

still a 0L, but look at South Dakota v. Dole.

Economic activity can be aggregated. Non-economic activity cannot be aggregated, but it can be regulated. The court looks at (amongst other thing)whether the link between the activity and the burden on interstate commerce is too attenuated, whether congress could have reasonably found that the activity does affect interstate commerce, whether there is a jurisdictional hook in the statute, and whether the regulation implicates some area that is the traditional domain of the states.

One Caveat: Raich seems to propose the idea that purely intrastate, personal, non-economic activities can be aggregated if the nature of the activity is normally economic.

Congress can also regulate non-economic activity if the regulation is (reasonably tied to) part of a broader economic regulatory scheme.
To the 0L, Dole is about the spending power.

[sanpiero]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

Economic activity is aggregated (as it was in Wickerd and Raich). Non economic activity (Morrison and Lopez) must be shown to have a substantial impact on interstate commerce. The Congress that passed the law at issue in Lopez did not fully explain the type and extent of effect guns in school zones has on interstate commerce. I think the outcome would have been different if the legislation was aimed at guns that had traveled in interstate commerce and wound-up in school zones.

I'm not sure about this statement of law: "you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme"

[McBean]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

This is generally speaking, a pretty good description. Regarding Lopez, the majority stated that non-economic activity could also be regulated if the statute included a jurisdictional statement. Also, they seemed to suggest that when regulating non-economic activity under the CC, Congress should make some findings linking the activity to interstate commerce before acting, though this was dicta. Lopez is generally though to be a shot across the bow of Congress letting them know that even though the court had not struck anything down since the New Deal that the CC was alive and well and did include internal limitations.

[bernie shmegma]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

still a 0L, but look at South Dakota v. Dole.

that's a taxing and spending clause case. doesn't apply.

They were only able to withhold highway funds because of Congress power to regulate commerce. The point was that the thing they wanted to regulate (drinking age) was only connected to their power to tax and spend through their power to regulate highways via commerce clause, and that connection was a huge stretch.

[BobSacamano]

You have it pretty much right, OP, except that Morrison makes it clear that even when there is strong evidence that the aggregate effects of non-economic activity has a substantial effect on interstate commerce, Congress can't regulate that non-economic activity.

Basically, you have the channels, the instrumentalities, and then either:
1. Economic activity with a substantial effect on interstate commerce. Congress only needs a rational basis for finding these substantial effects, and they can be aggregated (Raich, Wickard respectively).
2. Non-economic, local activity when it is necessary and proper to the enforcement of a larger regulation of interstate commerce.

And to the 0L, no, Dole is spending power, specifically Congress placing conditions on federal money. Please don't confuse matters. It's sort of relevant, but not nearly as relevant as Raich, Lopez, and Morrison. Those, along with Wickard, are probably the only cases that you should talk about with a "substantial effects" question.

[jetlagz28]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

still a 0L, but look at South Dakota v. Dole.

that's a taxing and spending clause case. doesn't apply.

They were only able to withhold highway funds because of Congress power to regulate commerce. The point was that the thing they wanted to regulate (drinking age) was only connected to their power to tax and spend through their power to regulate highways via commerce clause, and that connection was a huge stretch.

0L, gtfo

[tikitavi]

They were only able to withhold highway funds because of Congress power to regulate commerce. The point was that the thing they wanted to regulate (drinking age) was only connected to their power to tax and spend through their power to regulate highways via commerce clause, and that connection was a huge stretch.

haha, you are going to be legendary. nothing like someone saying things that are wrong, saying those wrong things in an authoritative way, and then adding your own little commentary('a huge stretch') to really cement your status. good work.

[seespotrun]

Hi all,

I need some clarification on the current status of the Commerce Clause. Here is how I basically understand it:

There are three ways Congress can regulate Commerce. You can regulate the instrumentalities (airplanes, cars, etc.), the passageways (roads, air, internet, etc.), and things that have a substantial effect on interstate commerce. Where I get confused is on the third part, particularly whether Congress can regulate non economic activity.

As I understand it, you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme and you can also regulate non economic activity if the aggregate effect of that activity would have a substantial impact on interstate commerce.

Is this the correct statement of law regarding non-economic activity?

Thanks in advance.

Economic activity is aggregated (as it was in Wickerd and Raich). Non economic activity (Morrison and Lopez) must be shown to have a substantial impact on interstate commerce. The Congress that passed the law at issue in Lopez did not fully explain the type and extent of effect guns in school zones has on interstate commerce. I think the outcome would have been different if the legislation was aimed at guns that had traveled in interstate commerce and wound-up in school zones.

I'm not sure about this statement of law: "you can regulate something that is non economic if not regulating that activity would undercut a larger regulatory scheme"

That's from Scalia's concurring opinion in Raich. It's been used by most academics to synthesize Morrison, Lopez, and Raich.

[solidsnake]

Gonzalez claimed to be following Rehnquist's holding in Lopez, but keep in mind that Stevens was in dissent of Lopez and is writing for the majority in Gonzales. So his understanding of the Lopez doctrine may be tainted by partisan bias. Anyway, Stevens wrote "The Commerce Clause encompasses the channels and instrumentalities of interstate commerce, goods and services moving in interstate commerce, and any economic activity that, aggregated across the national economy, substantially affects interstate commerce." To determine whether something is economic activity, he asks whether there was "consumption or production of a good or service"?

If the local activity is economic, then as long as Congress has a rational basis [bringing back the Ollie's BBQ prong that Lopez had dropped] for a substantial affect on interstate commerce in the aggregate, then Congress can regulate under the commerce power. Gonzales extended this category by including in it activity that was not intended to be bought or sold in the market but where there was an existing interstate market for that commodity (legal or not) and that uniform national legislation was needed. The majority relied on the Wickard reasoning that even production strictly for home consumption lowers aggregate demand by taking actors out the marketplace, thereby affecting interstate commerce, and New Deal legislation back then was all about subsidizing inefficient farming operations and implementing demand-side economics.

If the local activity is not economic, then Congress must show an ex-post concrete nexus between the specific activity and interstate commerce and a jurisdictional hook [which is a stupid formal requirement]. Under Morrison, the nexus to IC or eventual economic impact cannot be too attenuated. Morrison criticized the leg there for finding that gender-motivated violence affected commerce simply by dissuading women from traveling and increasing insurance premium costs as too indirect causation. At the time this suggested a possible return to the direct effect test seen way back in Carter Coal regulating instrumentalities and overturned by the first of the New Deal cases, Jones & Laughlin; but Gonzales may have bucked the trend.

[BobSacamano]

That's from Scalia's concurring opinion in Raich. It's been used by most academics to synthesize Morrison, Lopez, and Raich.

Oh hell, I forgot about this. It doesn't really make any sense, though, because it seems to totally cut against the holding in Morrison. I think Scalia's problem with the VAWA was that the connection to commerce was too "attenuated," right?

[bernie shmegma]

Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

[Matthies]

There's a commerce clause?

[jetlagz28]

Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

I dare you to use Dole on your Con Law final exam next year in relation to the commerce clause. Not only is the case about the tax and spending power of congress, its from 1987.

Lopez, which came in in 1995, is the foundation case for discussion of modern commerce clause doctrine, Morrison and Raich both built off of Lopez (and Raich also used aggregation from Wickard).

Even when talking about the history of the commerce clause (Lochner, NLRB etc...) it doesn't fit anywhere in an accurate discussion for an exam.

[seespotrun]

Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

They are two diff. enumerated powers. Congress can tax or spend for the general welfare, they don't have to tax/spend to effectuate another enumerated power. Dole had absolutely nothing to do with the Commerce Clause.

[vanwinkle]

[strike]Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations.[/strike] But, I'm just a 0L so wtf do I know?

[Matthies]

In a nutshell:

Commerce Power

General Rule: Article I, Section 8 gives Congress board powers to regulate commerce among the several states. This includes the channels of interstate commerce and the instrumentalities of interstate commerce (for any rational reason).

Substantial Effects Test - Substantial effects test – is it rational for Congress to believe that the regulated activity could have a substantial effect on interstate commerce. Generally presumed constitutional and any rational basis applies


Non-commercial Interstate Activity - Congress will lack authority under the interstate commerce clause unless it has an articulated rational basis to believe that the regulated activity has a substantial effect on interstate commerce.
Elements:
a) Articulated rational basis
b) Substantial economic effect
c) Casual chain not to attenuated
In the area of non-economic activity, a substantial effect cannot be based on a cumulative impact (there is where Lopez fits in, guns on school grounds too attenuted to be an economic impact under CC)

Don't foget about dormant CC in your anyalsis

[BobSacamano]

So... absolutely no help to the OP regarding whether non-economic activity can come under the substantial effects prong of the commerce clause.

I'm not being a jerk because you're an 0L offering advice on a con law topic, but because this is exam time, your rants on constitutional interpretation are of no help right now. Yes, we all know that Congress's powers have expanded and shrunk through the years. You could have mentioned the dormant commerce clause too! That would have been equally unhelpful.

And btw, you are really totally wrong. Spending power =/= commerce power.

[Aqualibrium]

[strike]Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations.[/strike] But, I'm just a 0L so wtf do I know?

Bernie must be misreading E & E's to prep for 1L

[mikeytwoshoes]

After Lopez congress amended the Gun Free School Zones Act to add a jurisdictional element (specific statement linking regulation to interstate movement). The reason why the court applied the non-deferential RB review was that the law lacked the jurisdictional element. Since the court has not revisited the issue, no on knows what would happen if congress regulated a non-economic activity with a jurisdictional element. This was low hanging fruit on my exam. Prof asked what would happen if the court revisited the issue. Well, there's two quick and easy options.

They can apply the deferential substantial effects test (Wickard, etc.) or the non-deferential substantial effects test (Lopez, Morrison). After that you can get creative.

[sanpiero]

Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

you suggesting to the op to look at Dole does nothing to answer his/her question. you are just complicating things. everyone sees the connection you are making. but, for purposes of understanding Morrison/Wickard/Raich/Lopez it is not necessary. the op's question was directed at understanding the non economic/economic distinction in these cases. Dole doesn't address this issue like the aforementioned cases do, hence your contribution to this thread has only wasted everyone's time. we understand you are itching to impress everyone with your 0L knowledge of con law. we don't care.

[vanwinkle]

Bernie must be misreading E & E's to prep for 1L

From now on, when 0Ls ask why they shouldn't read E&Es prior to starting law school, I'm just going to link to this thread.