Commerce Clause Forum

[Reds622]

Quick question about the Commerce Clause. So it looks like my prof. will be putting a Commerce Clause powers question on the exam. I am assuming that I do not need to go through the whole history of the Commerce Clause and how it developed? The current Commerce Clause power test I believe is from Lopez, so does that make cases like Ogden meaningless? Or do I still use some of the courts reasoning from previous holdings to supplement Lopez in my analysis?

[Reds622]

Anyone?? Need some help here guys... and girls.

[Richie Tenenbaum]

Go buy chemerinsky.

[TNFSkier16]

Go buy chemerinsky.

This. Its possible to discuss previous SCOTUS readings in the guise of recent cases w/o giving a history/development of the commerce clause. Ultimately, feel out your professor on what they want.

[quiver]

Ultimately, feel out your professor on what they want.

This is always TCR when it comes to exams.

[sparty99]

I feel like discussing the history of the Clause would be a waste of time. It seems like it is always changing...However, the arguments that everyone has made - federalism vs. compact federalism could apply to any scenario....I echo what the people say about Cheminsky and what ur prof wants..

[Sapientia]

Go buy chemerinsky.

This. Its possible to discuss previous SCOTUS readings in the guise of recent cases w/o giving a history/development of the commerce clause. Ultimately, feel out your professor on what they want.

TITCR. Every reading ofthe commerce clause can be alluded to by referring to a current justice. For example: 1937-1990: liberals; 1890-1937: Thomas; 1990-2005: Rehnquist and other conservatives; Unclear after Gonzales v. raich - this is all kind of sloppy, but you get the picture. FWIW, I don't think it's worth it to bring up Marshall, given that the commerce clause wasn't a big thing then. But, as others have said, talk to your prof.

I don't thinik it's ever smart to give a history lesson on your exam, though

[bazinga!]

i generally agree with everyone about Chemerinsky and gauging your response based on what is asked and what your prof wants but i will say it may be useful to know a clear outline of the history and argument in order to analyze an outcome/scenario/etc.. I could see some type of reponse like "one could argue based on a Lochner era interpretation of the commerce clause that Congress cannot regulate X because it interferes with state power; however, it is most likely that the court will adopt a modern interpretation given x,y,z precedent" if say the question has a similar scenario to regulating production of a good. i am not encouraging giving a full history lesson in an answer, just suggesting possible scenarios where the history of the commerce clause could be tested on an exam.

[ak362]

Congress can govern channels or instrumentalities of interstate commerce (doubtful this will come up, but see United States v. Darby if you really care all that much).

Congress can govern things that have a substantial effect on interstate commerce. (Heart of Atlanta, McClung)
- But, must have legislative findings supporting said substantial effect on interstate commerce. (Lopez)
- And the Court may not necessarily buy what Congress has to say re: legislative findings. (Morrison and VAWA)
- You can regulate purely local activities if they have a substantial effect on interstate commerce. (Wickard, Gonzales v. Raich).
- But maybe not (some argue that Raich is limited to the fact that Congress, w/r/t the CSA, was regulating a complete ban on a black market, which makes for a stronger argument re: interstate commerce by stamping out the market completely). Dean Chemerinsky and others like him might argue that Raich dealt with a non-economic subclass of activities within a broader economic class.

Ultimately, all responses above are TCR -- go with whatever your prof. thinks is right. No one really knows what the Court is going to do with cases like Raich w/r/t the Commerce Clause (see: ACA case), so your prof's interpretation will govern your exam.

[rad lulz]

I got a really good grade in Con Law and for my commerce clause essay I think I only excited Gonzalez and Lopez. YMMV depending on your prof.

[LSATNightmares]

Yeah, Lopez is not enough. You also need to discuss Morrison, Raich, maybe Comstock if you covered that. I'd also prepare perhaps for a question on health care reform and how that might apply to the Commerce Clause in light of Lopez, Morrison, etc. Whatever the Supreme Court says, it's going to change our understanding somewhat of the Commerce Clause.

[bartleby]

can someone clarify morrison to me? i know lopez got fixed up but didn't they just let morrison go away?

i think wickard is super important if you have to talk about raich. i sure do like the raich dissent. wickard had 6 tons or 6 acres of wheat. c'mon, he wasn't growing an herb garden...

are there any points for throwing in a little mcculloch pretext blurb? my professor thinks everything goes back to mcculloch

what are those other two cases...NLRB and darby? something about production not being manufacturing and overruling the child labor stuff? gosh con law is such a blur right now

[LSATNightmares]

My understanding of Morrison:

It goes further than Lopez in limiting the scope of Congress's Commerce power. When it comes to non-economic activities, substantial effect based on cumulative impact will not alone suffice, even if you have substantial evidence that there are links between the activity and commerce. In Lopez, there were theoretical links between gun violence to interstate commerce, and the Court found this too attenuated. In Morrison, there were substantial legislative findings showing that the effects on interstate commerce were not theoretical. However, legislative findings weren't enough, because federal efforts to protect women against violence were duplicating state efforts in this area. That's very important.

[Always Credited]

When you're using the commerce clause to protect women, its powers are limited.

When you're using the commerce clause to stop the proliferation of guns, its powers are limited.

When you're using the commerce clause to stop the sale/use of marijuana, GIVE CONGRESS ALL THE POWERS!

When you're using the commerce clause to help poor people with healthcare, its powers will likely be limited.



HTH.

[alicrimson]

I am also in Con Law currently and plan on discussing Lopez and Raich predominantly with some Morrison. I think it also might make sense to discuss Printz and New York if your prof covered this, especially if something looks like its entering into state territory. This lends nicely to a 10th Amendment discussion. If I were to use Lochner era Commerce Clause cases it would mostly be to illustrate what the channels and instrumentalities of commerce are. Good luck!

[leobowski]

Review the cases you've read in the chemerinsky hornbook, and incorporate that into your outline. That book should be your main study guide for con law. The E&E is helpful for practice questions, but not much else.

[bk1]

When you're using the commerce clause to protect women, its powers are limited.

When you're using the commerce clause to stop the proliferation of guns, its powers are limited.

When you're using the commerce clause to stop the sale/use of marijuana, GIVE CONGRESS ALL THE POWERS!

When you're using the commerce clause to help poor people with healthcare, its powers will likely be limited.



HTH.

I lol'ed.

[shoulinpandas]

[bartleby]

wtf does comstock have to do with the commerce clause specifically...nvm got it