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Professor Mate
Constitutional Law I

Commerce Clause Handout Post Lopez

What is the activity being regulated?

1) Channels of Interstate Commerce Congress may

Lopez Categories of Commerce

(roads, waterways, railroads) regulate under

commerce
clause
2) Instrumentalities of Interstate Commerce
(railroads, trucks, persons and things in
commerce)

3) Intrastate/Local Activities that have Substantial Effects on

Interstate Commerce (Darby, Jones and Laughlin)

Economic Activity? Noneconomic Activity? (e.g. criminal

Apply: law, family law, other areas of traditional
1) Rational Basis Review state regulation) (Lopez, Morrison)
2) Substantial Effect Analysis
3) Aggregation principle (Wickard )
1) Apply more searching scrutiny Yes
2) Examine Congressional Findings
(findings arent dispositive) Jurisdictional
Element?

No

Comprehensive Regulatory Scheme?

(Wickard/Raich) Law is beyond
Congress power
Congress may No
Is regulated activity (including intrastate non- to regulate under
regulate under
Commerce
Yes commercial activity) part of a comprehensive Commerce;
th
national regulatory scheme whose efficacy would 10 Amendment
Clause Arguments?
be impaired by inability to regulate?

[Commerce + Necessary and Proper Clause
analysis]

Apply:
1) Rational Basis Review
2) Substantial Effects Analysis
3) Aggregation principle (Wickard)
Professor Mate
Constitutional Law I

Approach to Commerce Clause:

1. Identify the regulated activity/commodity, and what category the regulation falls
under.
2. Identify the type of law (single subject statute or comprehensive regulatory
scheme)
3. Standard of review is rational basis review although with a higher scrutiny of
findings for non-economic activity.
4. Other things to remember:
a. If the act or legislation regulates non-economic activity, if there a
jurisdictional element, it effectively moves the activity to category 1 or 2
and the act or legislation is constitutional
b. If the act or legislation regulates non-economic activity, and there is no
comprehensive federal regulatory scheme, analyze whether 10th
Amendment (state police powers) concerns apply
c. Activity v. Inactivity distinction: If the act or legislation creates activity
which it seeks to regulate, e.g. compels or requires individuals to engage
in commercial activity, Congress lacks power to create such activity
under the Commerce Clause per NFIB v. Sebelius (individual mandate).