emarxnj wrote:Got my self a little mixed up in my commerce clause analysis. I don't know how differently it's taught, but here's how ours looks (I trimmed this down to just the big steps so its clearer):
1. Is this a regulation of:
a. Channels of interstate commerce? If so, Darby applies.
b. Instrumentalities of commerce? If so, Shreveport Rate Cases applies.
c. Neither? Go to step 2
2. Check for possibility of bootstrap argument
3. Does the statute have a jurisdictional requirement? If not, go to step 4
4. Is the regulated activity economic or commercial in nature?
a. Specify the regulated activity using method in Raich
b. Determine whether activity is economic or commercial. DO NOT RELY ON EFFECTS OF ACTIVITY ON COMMERCE.
Instead, rely on factors such as: [four factors]
5. Apply substantial effects test
a. If answer to 4 was YES --> apply Wickard/McClung version (aggregation allowed, rational basis review)
b. If answer to 4 was NO --> apply Lopez version
So where I'm confused a little is the last step. I understand Wickard/McClung basically allow you to aggregate the activity's effect on interstate commerce, and no law has been struck down under that test. I know that under Lopez, everything gets struck down. Is there an actual "test" to state, or do you just need to say "blah blah Lopez controls so blah blah". IIRC those factors for determining whether activity is economic/commercial came from Lopez, right? Maybe that's where I'm getting lost. Is that the substantial effects test, which is really applied in step 4, and then 5 is just how it gets resolved following that determination.
Just state that the Gov can regulate the aggregate if they can show it has the required effect on commerce. (Cite the case).
Then say, that Lopez stands as a limit on that reach of Gov. (cite Lopez)
Then say , "Here, becasue...." and start your A portion of your IRAC.
I think you are too rigid in the reliance on cases.
Try not to look at it as a case "controlling" an outcome.
Take the relevant cases, and argue:
"More like this one...and less like this one" <----- do this
(a case will "control" if the facts of your current issue are "more like it" than others..)
But it is the "more like it" that is the authority.
So, show it.
This was how I was taught. I find it makes the concept of "analyzing" more natural.
Also, It is basically what you will do for a living.
So start to conceptualize it like that now...
Hope that helps.