Federal Legislation Powers - Commerce

When you come across a Federal Law ask: From what provision of the Constitution is Congress is deriving its power?
1. The Commerce Clause (used for almost all economic regulations) : Article 1, § 8, cl. 3: Congress may regulate commerce with foreign nations, Indian tribes and among the several states
  1. Federal Commerce Clause Test
    1. First: Is Congress regulating an existing commercial activity? (Sebelius)
      1. Congress has to power to regulate commercial activity, not inactivity (the Commerce Clause presupposes an activity that is already in existence to regulate)
      2. Congress cannot compel a person to engage in commerce (ex: in Sebelius, the Court explained that the commerce clause powers cannot be used to justify a law requiring a person to purchase insurance)
      3. Therefore, if Congress is regulating a pre-existing activity, move on to the next step.
    2. Second (Lopez/Morrison Test) -Under the Commerce Clause Congress may regulate under the following 3 situations:
      1. 1. Channels of interstate commerce Anywhere commerce occurs; highways, railroads, airways, the internet (Gibbons v. Ogden)
      2. 2. Instrumentalities, people, or things moving in interstate commerce Things that facilitate/move in interstate commerce: trucks, planes, computers, goods, information (Katzenbach v. McClung (meat moving in interstate commerce) and Heart of Atlanta Motel v. U.S. (people moving in interstate commerce)))
      3. 3. intrastate activities that substantially affects interstate commerce (consider the following 5 factors)
        A. Is the activity economic or commercial in nature?
        B. Does the law include a jurisdictional statement limiting the reach of the law?
        C. Has Congress provided findings regarding the effect of the activity on interstate commerce?
        D. Does the activity have a sufficiently close connection/relationship to interstate commerce or is it too attenuated? (more than a but-for causation test)
        E. Is this an area traditionally reserved to the states? (crime, education, health, ect..)
        Third: ONLY if you are under the 3rd prong of Lopez/Morrison (intrastate activities that substantially affects interstate commerce)
        When determining whether the activity is economic or commercial in nature and discussing the causation factor (under the 3rd prong of Lopez/Morrison), you can discuss the aggregate effects test, as stated in Gonzales:
        Congress may regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce when taken aggregately.
        Ask yourself: if all people were to engage in the same local activity on a national level, would it substantially affect interstate commerce
        Congress can regulate a purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
        Nota:
        Ex: In Gonzales, the plaintiffs were producing marijuana for their own consumption (not available for sale), therefore, if you were to apply the Lopez/Morrison test, you would find their activity to NOT be economic or commercial in nature. However, applying the aggregate effects test, if everyone who uses marijuana was to produce their own for consumption, this would undercut the interstate market (supply/demand) in the commodity
        After you decide which category the regulation falls under Lopez/Morrison, the law will be sustained unless the challenger can show that Congress had no rational basis for the law.
        Necessary and Proper Clause-Art. I, Sec. 8, cl. 18 Congress may choose any means that are “necessary” and “proper” for carrying out its enumerated powers, so long as it is rationally related to a legitimate government interest. This is not an independent grant of constitutional power.
After you have derived the enumerated power from which Congress may (or may not) pass a particular law, consider State Sovereignty/10th Amendment issues.

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