Calling All Commerce Clause Experts Forum

[Kage3212]

So, our prof gave us a practice hypo for the CC. I have been studying up on this for the past few days but still am unsure how exactly the approach the problem. Here is the essential problem:

Congress passes the Endangered Species Act. They delegate to an agency to maintain a list of endangered species. Some developer applies for a permit with the agency, but the permit gets denied because the agency is an ass. So essentially, I think the question is whether Congress is validly exercising its CC power in creating the ESA.

My Questions:
1.) Are there any issues I should be addressing other than CC? Such as standing?
2.) Under the CC analysis I know Congress can regulate things that substantially affect commerce under the third prong articulated in Lopez. I also understand that there is a big distinction between Economic vs. Noneconomic. Do I first argue that this should be seen as economic because there is some commercial value in protecting endangered things? And then since this is arguably economic we can take into account the aggregate affects of keeping endangered species? Do I then go down the line of, if it is NOT economic then other factors come into account to determine whether congress can regulate? (Is this where things such as jurisdictional hook, legislative findings, traditional state concern?)
3.) Is the necessary and proper argument completely separate from the CC analysis?

I have searched these forums for a straight forward application of how this is to be analyzed and cant seem to make sense of it all. I think most of my confusion stems from what happens once it is determined that the activity is NOT ECONOMIC...what factors then come into play to determine whether Congress can regulate the activity. Thanks to anyone that takes a stab at this.

[Gamecubesupreme]

I think most of my confusion stems from what happens once it is determined that the activity is NOT ECONOMIC...what factors then come into play to determine whether Congress can regulate the activity.

It's been too long since Con Law for me to properly assist you, but I would recommend reading the Affordable Care Act decision for more information on this issue.

[pat4redick]

3.) Is the necessary and proper argument completely separate from the CC analysis?

My professor (presently) always worked through court decisions as if the two were separate analysis (P first tried to argue CC, and argued alternatively N&P). But I'm not 100% sure. Tagging because I need clarification as well.

[Bronck]

I'm no expert on this, so feel free to correct me if I'm wrong... but after Comstock and the ACA case, the inquiry seems to be:

1. Does Congress have the authority to create the relevant law pursuant to the Commerce Clause (look to the 3 Lopez categories)?
2. If not, per Comstock and ACA, is the relevant law necessary and proper to effectuate the core of what the government is doing (AFAIK, the core is often commerce clause-related: e.g., no one was arguing that Congress didn't have authority to regulate the terms on which health insurance is sold)?

For 2, it's perfectly fine if Congress created the original problem. They may still exercise authority under the N&P clause. But, Roberts in the ACA case made it clear that you must have an inquiry into both what is necessary and what is proper (he looks to whether some act is 'too much' and undermines the structure of government).

[cardinals1989]

So, our prof gave us a practice hypo for the CC. I have been studying up on this for the past few days but still am unsure how exactly the approach the problem. Here is the essential problem:

Congress passes the Endangered Species Act. They delegate to an agency to maintain a list of endangered species. Some developer applies for a permit with the agency, but the permit gets denied because the agency is an ass. So essentially, I think the question is whether Congress is validly exercising its CC power in creating the ESA.

My Questions:
1.) Are there any issues I should be addressing other than CC? Such as standing?
2.) Under the CC analysis I know Congress can regulate things that substantially affect commerce under the third prong articulated in Lopez. I also understand that there is a big distinction between Economic vs. Noneconomic. Do I first argue that this should be seen as economic because there is some commercial value in protecting endangered things? And then since this is arguably economic we can take into account the aggregate affects of keeping endangered species? Do I then go down the line of, if it is NOT economic then other factors come into account to determine whether congress can regulate? (Is this where things such as jurisdictional hook, legislative findings, traditional state concern?)
3.) Is the necessary and proper argument completely separate from the CC analysis?

I have searched these forums for a straight forward application of how this is to be analyzed and cant seem to make sense of it all. I think most of my confusion stems from what happens once it is determined that the activity is NOT ECONOMIC...what factors then come into play to determine whether Congress can regulate the activity. Thanks to anyone that takes a stab at this.

Bronck covered most of it, but I’ll add a few things.

1) As far as your question on other issues, you could ask some questions under administrative law (such as the non delegation/intelligible principle test, procedural correctness under the APA, and arbitrary and capricious review under the APA), but this is con law, not admin law. There MIGHT be standing issues (for a description of the standing analysis, see Lujan), but it is hard to say what other issues should be addressed without knowing what you have studied and what the prompt actually says. Non-delegation might be an issue, but the statutory language pretty easily meets the intelligible principle test of Whitman Trucking Association.
2) Morrison/Lopez/Raich/Comstock/NFIB provide the line of cases you want to look at it, with Lopez and Raich probably being the most useful. As that line explains, you only reach the Wickard aggregation principle if the activity is considered “economic,” with “economic" being subject to the independent judgment of the courts. However, Stevens in Raich explains that the level of analysis is determined by Congress (i.e., what is being regulated? The independent use of marijuana or the system as a whole). To a certain extent, this nullifies the independent judgment of the court.
3) One important thing to keep in mind is that the Necessary and Proper Clause does not provide an independent source of power and is only used to carry into effect the other regulatory powers of Congress. In other words, it is a means, not an ends.

Although Scalia only wrote the concurring opinion in Raich, I think his analysis makes the method you would use on the exam most clear. If the activity does not falls within the first two Lopez categories, the third category can include either provisions that are necessary to effectuate the regulatory scheme (such as the individual mandate), or things which have a substantial effect on interstate commerce, with aggregation only happening if the activity is, on its face, economic.

To make this all a bit clearer:

1) Is it under the first two categories of Lopez (channels of interstate commerce, or instrumentalities of interstate commerce or persons or things in interstate commerce)?
2) Under the third prong of Lopez, as later explained by other cases (third prong is arguably a combination of the commerce clause and the NPC):
a) Is it a necessary component of a broader regulatory scheme that falls within the enumerated powers of Congress?
b) Is the activity arguably economic? If so, aggregate and determine whether there is a substantial effect on interstate commerce. If the activity is not economic, then the individual actions cannot be aggregated to determine whether there is a substantial effect on interstate commerce.
3) Even if the regulation is necessary, is it proper? (Unclear what the scope of this analysis is at this point, but includes such interests as separation of powers and federalism)

[nucky thompson]

So, our prof gave us a practice hypo for the CC. I have been studying up on this for the past few days but still am unsure how exactly the approach the problem. Here is the essential problem:

Congress passes the Endangered Species Act. They delegate to an agency to maintain a list of endangered species. Some developer applies for a permit with the agency, but the permit gets denied because the agency is an ass. So essentially, I think the question is whether Congress is validly exercising its CC power in creating the ESA.

My Questions:
1.) Are there any issues I should be addressing other than CC? Such as standing?
2.) Under the CC analysis I know Congress can regulate things that substantially affect commerce under the third prong articulated in Lopez. I also understand that there is a big distinction between Economic vs. Noneconomic.

Do I first argue that this should be seen as economic because there is some commercial value in protecting endangered things?

And then since this is arguably economic we can take into account the aggregate affects of keeping endangered species?

Do I then go down the line of, if it is NOT economic then other factors come into account to determine whether congress can regulate? (Is this where things such as jurisdictional hook, legislative findings, traditional state concern?)

3.) Is the necessary and proper argument completely separate from the CC analysis?

I have searched these forums for a straight forward application of how this is to be analyzed and cant seem to make sense of it all. I think most of my confusion stems from what happens once it is determined that the activity is NOT ECONOMIC...what factors then come into play to determine whether Congress can regulate the activity. Thanks to anyone that takes a stab at this.

You did not give nearly enough info from the hypo for a real/coherent response - but i will give some advice on how I would analyze

This is a federal law, enacted by federal legislators - the constitution does not give congress police power - therefore, the first question you must ask is - What constitutional provision authorizes congress to enact this law?

We have been told this is relevant only to commerce clause - So you start your analysis by quoting art I, § 8 - ...congress has the power to regulate commerce among the several states etc. etc....

You then give a quick summary of the three types of things congress can regulate under the CC

Now you analyze the facts - what is it that congress is regulating? they are regulating the preservation of endangered species

Does the regulation of endangered species fall within categories one, two, or three?

Here, we are not given enough facts. Certainly there are animals/wildlife species which are bought/sold/shipped etc. in interstate commerce (which would likely fall within category 1 - Congress can use its plenary power to regulate the channels of interstate commerce even if it is doing so to accomplish traditional police power objectives.) If the act covers these types of animals/wildlife species, then certainly they can be regulated.

But it is also likely that the act regulates species which are not part of the commodity markets/nor shipped between states - therefore congress would be regulating an activity or thing occurring wholly intrastate --> go to category 3

When congress regulates something wholly intrastate we must assess whether the regulated activity has a substantial effect on interstate commerce (or if it is part of a comprehensive regulatory scheme, as in Raich - unlilkey to apply here, unless one endangered species which congress can regulate survives/depends upon a different endangered species which is wholly intrastate)

Here, we would need more facts. If the regulated intrastate species are used intrastate to produce medicine or product or something which is then shipped interstate, then it would be commercial in nature and we could therefore aggregate the effects and this part of the act would be constitutional

If say, the act covers a species a useless plant species that never leaves the state and is never used in commerce (production/manufacture etc.) - then this is definitely not a commercial/economic activity. One could argue that if the plant is pretty, and unique to a state, it is economic because it brings visitors from out of state into the state and therefore effects interstate commerce ---> but in Lopez we were told the Court is unwilling to pile inference upon inference to deem something as an economic activity (see Lopez, unwilling to accept pile of inferences need to say gun possession effects interstate commerce because it could cause violence/disrupt education etc.)

Now here is where the necessary and proper clause comes into play - One could argue that even if congress does not have the power to directly regulate these wholly intrastate activities, it can still regulate the species because it is necessary and proper to effectuate regulation of species which can be directly regulated



EDIT: sorry, I am not CC expert - just another 1L trying to figure this shit out - hopefully someone else can comment on my contribution

[MinEMorris]

Sorry it's been too long for me to go into any depth, but I did remember one case that I thought I would point out since its logic would be good to drop on a hypo like this: National Association of Homebuilders v. Babbitt. It was a circuit court case that involved people who wanted to build a hospital on land that was occupied by a protected species of fly. The builders relied on Lopez and argued that it was noneconomic activity that was being regulated (i.e., that the presence of the fly was noneconomic). As part of its reasoning, the circuit court seemed to take the position that although the presence of the fly was noneconomic, the action of building a hospital was economic and therefore could be aggregated. This is obviously a pretty radical twist/interpretation on the economic/noneconomic distinction, and my guess is that it's incorrect, but you might still impress the professor by acknowledging the possibility of this interpretation since it has not been clearly ruled out by any Supreme Court precedent (at least that I'm aware of).

HTH

[MrSparkle]

So, our prof gave us a practice hypo for the CC. I have been studying up on this for the past few days but still am unsure how exactly the approach the problem. Here is the essential problem:

Congress passes the Endangered Species Act. They delegate to an agency to maintain a list of endangered species. Some developer applies for a permit with the agency, but the permit gets denied because the agency is an ass. So essentially, I think the question is whether Congress is validly exercising its CC power in creating the ESA.

My Questions:
1.) Are there any issues I should be addressing other than CC? Such as standing?
2.) Under the CC analysis I know Congress can regulate things that substantially affect commerce under the third prong articulated in Lopez. I also understand that there is a big distinction between Economic vs. Noneconomic. Do I first argue that this should be seen as economic because there is some commercial value in protecting endangered things? And then since this is arguably economic we can take into account the aggregate affects of keeping endangered species? Do I then go down the line of, if it is NOT economic then other factors come into account to determine whether congress can regulate? (Is this where things such as jurisdictional hook, legislative findings, traditional state concern?)
3.) Is the necessary and proper argument completely separate from the CC analysis?

I have searched these forums for a straight forward application of how this is to be analyzed and cant seem to make sense of it all. I think most of my confusion stems from what happens once it is determined that the activity is NOT ECONOMIC...what factors then come into play to determine whether Congress can regulate the activity. Thanks to anyone that takes a stab at this.

Don't bother with standing, the ESA allows "citizen suits" which solve that problem already.
Comes down to basically Wickard vs. Lopez. Using the Lopez categories it is pretty clearly in the 3rd category. What is the substantial interstate economic effect?

Yes economic:
- Preservation of biodiversity is an important goal because there is an "option value" in that we don't know what species will be valuable in the future.
- This is an interstate effect, even if that species is completely within one state (or one tiny area) because it is for the benefit of all.
- Possibly could be argued that the party who applied for the permit is trying to conduct an economic activity (developing, building something) which CAN be regulated. (but this is counteracted by the fact that the thing regulated, species is the focus, not what is harming it, because a hiker who kills that species for fun would be anomalously left out).
- Follow Wickard, because the person was arguably not doing something "economic" by growing wheat for his own consumption. If aggregate effects of an activity which are isolated and within a state can be regulated because in aggregate it could have an interstate commerce effect, then speciies can be regulated the same way.
- Species are all interconnected/part of an ecosystem, and ecosystem effects could come around and detrimentally affect us.
- Some species could have value for tourism; i.e. people who come to look at them.
- Some species migrate and require cross-state protection (assuming that species has economic value).

Not economic:
- Preservation of all endangered species is not an economic activity, because they have no real value. Too speculative to prevent current development because of the unknown value of a tiny fly/fish/whatever.
- Wickard was an actual economic activity - wheat grown was to be used by farmer for economic benefit to himself. ESA doesn't follow Wickard unless the species has actual economic value.
- Endangered species are often in small geographical areas, and when it's within one state, its economic effects are limited to that state.
- Protection of a species based on preventing an economic development, and saying that b/c the development is economic activity that can be regulated so species protection is allowable under CC, avoids the thing being regulated.
- More inferences are required to be made to say that protecting species is an economic activity compared to both Lopez and Wickard.

[cardinals1989]

Don't bother with standing, the ESA allows "citizen suits" which solve that problem already.

A bunch of good stuff, but one note on this. Citizen suit provisions waive prudential, not constitutional standing requirements. They may also lower the redressability and immediacy concerns, but they cannot waive AIII standing requirements.

[collegewriter]

Don't forget about dissent reasoning: Breyer has a great dissent in Lopez that you might consider talking about. There only needs to be a rational basis for Congress' method of regulation according to Breyer.

Also, Raich is a bit of a red herring since Scalia flips on this case. Presumably because he doesn't like pot smoking hippies (but don't write that).

[echooo23]

So just to clarify -

The way to answer a commerce clause question is:

1) is it one of the 3 categories (channels, instrumentalities, activity that has a substantial effect on interstate commerce)?
2) if it is #1 or 2 --> interstate commerce; if it is #3 --> is it an activity that affects interstate commerce?
3) activity affects commerce when...Lopez factors (non-/economic, jurisdictional element, congressional findings, link between regulated activity and interstate commerce)
4) but does it substantially affect interstate commerce? economic = aggregate, non-economic = can't aggregate but can regulate if substantial effect, inactivity = cannot regulate
5) if appears cannot regulate under CC alone, can it be done under N&P?
6) argue Breyer dissent (old test - constitutional so long as Congress had a rational basis for finding that activity substantially affects interstate commerce)

Is that about it? If so, I have some clarifying questions

1. Are the Lopez factors to determine if the activity affects interstate commerce, and then the following step is to determine if it substantially affects? Or are they all part of substantially affects? I'm not exactly sure how the wording should work out when I write my exam answers.

2. N&P has always been "useful" or "desirable," not "indispensible" or "essential." Is this still the case? I read somewhere that N&P really does mean necessary and proper, and requiring both prongs now, since Sebelius or one of the more recent cases. Can someone confirm?

[Bronck]

2. N&P has always been "useful" or "desirable," not "indispensible" or "essential." Is this still the case? I read somewhere that N&P really does mean necessary and proper, and requiring both prongs now, since Sebelius or one of the more recent cases. Can someone confirm?

Correct. Roberts said that "proper" requires an inquiry into whether the legislation goes "too far". Not unsurprising of shitty Supreme Court cases, he provides no guidance. But, necessary still means the same thing.

[echooo23]

2. N&P has always been "useful" or "desirable," not "indispensible" or "essential." Is this still the case? I read somewhere that N&P really does mean necessary and proper, and requiring both prongs now, since Sebelius or one of the more recent cases. Can someone confirm?

Correct. Roberts said that "proper" requires an inquiry into whether the legislation goes "too far". Not unsurprising of shitty Supreme Court cases, he provides no guidance. But, necessary still means the same thing.

Thanks!