Modern Commerce Clause Forum

[abudaba]

Want to make sure I have the modern (post 1995) commerce clause outlined correctly

I. Three categories Congress may regulate under the Commerce Clause
1) Use of channels in interstate commerce
2) Instrumentalities of interstate commerce
3) Activities having a substantial relation to interstate commerce

a) Two categories of "Activities"
(1) Economic Activities: court looks at the aggregate effect of the activity to determine "substantial relation" (i.e. Gonzales v. Raich)
(2) Non-economic Activities: court looks at the activity in isolation for "substantial relation" (i.e. U.S. v. Morrison or U.S. v. Lopez)

I'm unclear if the court actually separates activities into economic vs. non-economic and if I am understanding the test for each correctly?

[fatduck]

actually it goes like this:

is it an activity?

if yes, the commerce clause applies
if no, the commerce clause applies

[abudaba]

thought that would have been true in the days that the Commerce Clause had no limits (between 1937 and 1995) but now there are actually some constraints (after the Lopez case)

[Kiersten1985]

I was under the impression that the Lopez held that non-economic activities can't be regulated, end of analysis. I could be wrong.

I have it basically as:

(1) Is it an economic activity? (Court distinguishes economic versus "commercial" in Gonzales v. Raich)

(2) If no --> can't regulate.

(2) If yes --> can regulate if economic activity "substantially relates" to interstate commerce, based on Lopez 5-factors and/or aggregate principle (Raich).


Would be curious to see others' take on this b/c I'm trying to work though it, too.

[swc65]

I was under the impression that the Lopez held that non-economic activities can't be regulated, end of analysis. I could be wrong.

I have it basically as:

(1) Is it an economic activity? (Court distinguishes economic versus "commercial" in Gonzales v. Raich)

(2) If no --> can't regulate.

(2) If yes --> can regulate if economic activity "substantially relates" to interstate commerce, based on Lopez 5-factors and/or aggregate principle (Raich).


Would be curious to see others' take on this b/c I'm trying to work though it, too.

I thought it was substantially affects interstate commerce. the only things I would add is that even if the economic activity itself does not substantially affect, you can aggregate. So if the regulation is controlling an economic activity that a lot of are or could be engaging in you can add up the affect from all of these people (in practice this pretty much means anything affects interstate commerce).


There is also the traditional state functions argument which is at work in Lopez. There is also the concern that if the pre-95 precedent is followed to its logical conclusion, almost anything affects interstate commerce and therefore Congress becomes all powerful which simply cannot be the case with a government of limited enumerated powers.


From what I understand about ConLaw, it seems to be the least amenable to clear rules. I would hesitate to outline anything like If econ, yes, if not, no. I believe that you would forgo a lot of points on a test if you do not weigh the values at stake in any situation.

[Kiersten1985]

/\ Credited.

I would certaintly go into detailed analysis of whether the activity actually is economic. Like you said, you can sort of side-step the economic component by using the aggregate principle if the court finds a substantial effect on IC (Raich). However, the ultimate issue is whether the activity substantially affects interstate commerce. To determine this, court normally uses the five factors set out in Lopez:

(1) how "economic" the activity is;
(2) whether there's a jurisdictional hook to the legislation;
(3) whether regulation is part of a broad statutory scheme;
(4) whether there is an attenuated chain of causation b/w activity and effect on interstate commerce; and
(5) whether the activity is traditionally regulated by state law.

[abudaba]

found another post on the topic:

http://www.top-law-schools.com/forums/v ... 3&t=141228

[dougroberts]

Don't forget about the revival of the 10th Amendment as a limit on Congress‘s powers post-1990's (NY v. US, Printz, and Reno v. Condon)

[YourCaptain]

My professor stated that it's not-strictly the case that "non-economic" activities can't be regulated.

Pointed out that while probably correct Morrison was much tougher than Lopez because you could tie it to economic effects (as was provided in findings by Congress in the case).

[Renzo]

My professor stated that it's not-strictly the case that "non-economic" activities can't be regulated.

Pointed out that while probably correct Morrison was much tougher than Lopez because you could tie it to economic effects (as was provided in findings by Congress in the case).

This is an unsettled question, I think. You could argue that "economic in nature" was just one of many factors to be considered as the test is laid out in Lopez. But Morrison and Raich make it look like a necessary finding, although without saying so explicitly.

[Renzo]

[quote="G. T. L. Rev."] I put "non-economic" in quotes, because to some extent that is a conclusion, rather than an objective condition. To some extent, everything in life has economic effects--the only question is how substantial they tend to be. /quote]

Agreed. I think the term "marketplace activity" would have been clearer, and is probably what the court meant. But, unfortunately for lawyers and students everywhere, that's not the term they used.

[Gatriel]

actually it goes like this:

is it an activity?

if yes, the commerce clause applies
if no, the commerce clause applies

What isn't an "activity" that could be swept under the commerce clause?

[Renzo]

actually it goes like this:

is it an activity?

if yes, the commerce clause applies
if no, the commerce clause applies

What isn't an "activity" that could be swept under the commerce clause?

Carrying a gun in school, or beating your wife. That much we know, if nothing more.

[Gatriel]

I guess I was thinking what "commercial activity" more so than any activity, but yes those are probably not regulated unless by beating ones wife or carrying a gun affects interstate commerce in some way or another.

[fatduck]

i was making a joke.

[Gatriel]

Whop! My bad dude!