Commerce clause question approach

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Commerce clause question approach

Postby rustyyoda » Thu Apr 25, 2013 9:43 am

Hey guys. I've done a lot of forum searching but can't find quite the answer I'm looking for.

How do you approach a commerce clause question? My professor says that we should only enlist the historic cases (Carter Coal through EC Knight) if they're factually similar to the question, so it seems to me that the way to approach it is to place the regulation/law into one of the three Lopez categories. Once you place it in a category, do you use the rational basis review level? We read the National Federation of Independent Businesses case (healthcare case) which seems to move away from that rational basis review, so would you discuss both a more limited scope of commerce power under that case and the rational basis deferential view?

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