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Can someone explain the relationship between the commerce clause and the necessary and proper clause? I understand the basics, in that Congress has the power to make laws that are necessary and proper for carrying out its commerce power, but beyond that I'm a bit confused. In Comstock the Court held that "in determining whether the necessary and proper clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power." Does that mean that in Lopez and Morrison the Court found that there wasn't a rational means ends fit? Or are there separate inquiries for the commerce clause and the necessary and proper clause? First the Court determines whether the regulated activity is within Congress's commerce power and, if so, whether the means by which it chose to regulate that activity was rationally related to its power? If that is the case, what level of scrutiny does the court apply when it is determining whether an activity substantially relates to interstate commerce. Is it also rational basis review? I know the Court makes reference to rationality in Raich, but the portions of Lopez and Morrison that are in my book don't seem to mention the level of scrutiny.

Sorry, that was a bit long and possibly really inarticulate, but if anyone understands this better than I do, I'd greatly appreciate some advice.

Anyway, the relationship is inherent in the commerce clause test. Most things that Congress does with it's commerce clause powers are not really actually regulating "interstate commerce" which is actually things crossing state lines but just doing things necessary and proper to regulate interstate commerce. You don't need to make any further inquires beyond the commerce clause analysis.

Other than that, I'm not exactly sure what you are asking so I don't want to confuse you.

AreJay711 wrote:Anyway, the relationship is inherent in the commerce clause test. Most things that Congress does with it's commerce clause powers are not really actually regulating "interstate commerce" which is actually things crossing state lines but just doing things necessary and proper to regulate interstate commerce. You don't need to make any further inquires beyond the commerce clause analysis.

Other than that, I'm not exactly sure what you are asking so I don't want to confuse you.

I guess what I am trying to ask is whether the necessary and proper clause (as defined in Comstock) sets the level of scrutiny applied to commerce power at rational basis.

rockspaperjesus wrote:

AreJay711 wrote:Anyway, the relationship is inherent in the commerce clause test. Most things that Congress does with it's commerce clause powers are not really actually regulating "interstate commerce" which is actually things crossing state lines but just doing things necessary and proper to regulate interstate commerce. You don't need to make any further inquires beyond the commerce clause analysis.

Other than that, I'm not exactly sure what you are asking so I don't want to confuse you.

I guess what I am trying to ask is whether the necessary and proper clause (as defined in Comstock) sets the level of scrutiny applied to commerce power at rational basis.

I think you should just go with the tests in Lopez, Morrison, and Raich. My final rule in my outlines was:

"Can regulate anything that is commercial or economic in nature that has a substantial that has a substantial effect on interstate commerce. Lopez; Morrison. Even home production is economic, when it is of something with a national, interstate market. Raich. Alternatively, maybe it includes anything that is non-economic if it is a part of a larger regulatory scheme that is a valid use of the ITC Powers. Scalia Concur in Raich."

That is the rule as I understood it. There is no rational basis or anything like that. The Court incorporated the Necessary and Proper clause jurisprudence in those decisions since not of them was interstate commerce per se.

AreJay711 wrote:

rockspaperjesus wrote:

AreJay711 wrote:Anyway, the relationship is inherent in the commerce clause test. Most things that Congress does with it's commerce clause powers are not really actually regulating "interstate commerce" which is actually things crossing state lines but just doing things necessary and proper to regulate interstate commerce. You don't need to make any further inquires beyond the commerce clause analysis.

Other than that, I'm not exactly sure what you are asking so I don't want to confuse you.

I guess what I am trying to ask is whether the necessary and proper clause (as defined in Comstock) sets the level of scrutiny applied to commerce power at rational basis.

I think you should just go with the tests in Lopez, Morrison, and Raich. My final rule in my outlines was:

"Can regulate anything that is commercial or economic in nature that has a substantial that has a substantial effect on interstate commerce. Lopez; Morrison. Even home production is economic, when it is of something with a national, interstate market. Raich. Alternatively, maybe it includes anything that is non-economic if it is a part of a larger regulatory scheme that is a valid use of the ITC Powers. Scalia Concur in Raich."

That is the rule as I understood it. There is no rational basis or anything like that. The Court incorporated the Necessary and Proper clause jurisprudence in those decisions since not of them was interstate commerce per se.

Rational basis is just what Breyer and a bunch of the other liberal judges are pushing. As I understand, they reject this whole "substantial effects" thing and think the correct test is rational basis. They're losing that fight though.