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    The Federal Commerce Power

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    superxl2009
    Congress has broad powers to regulate interstate commerce under three categories: channels of commerce, instrumentalities of commerce, and activities that substantially affect interstate commerce. The Supreme Court gives Congress less deference now and scrutinizes whether the activity is economic in nature and whether it has traditionally been regulated by states. The Tenth Amendment places some limits in that Congress cannot compel states to enact or enforce federal laws. The dormant Commerce Clause restricts states from discriminating against or unduly burdening interstate commerce even without congressional action. State laws must not purposefully discriminate and must regulate evenhandedly between in-state and out-of-state interests to avoid violating the dormant Commerce Clause.

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    The Federal Commerce Power

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    superxl2009
    122 views2 pages
    Congress has broad powers to regulate interstate commerce under three categories: channels of commerce, instrumentalities of commerce, and activities that substantially affect interstate commerce. The Supreme Court gives Congress less deference now and scrutinizes whether the activity is economic in nature and whether it has traditionally been regulated by states. The Tenth Amendment places some limits in that Congress cannot compel states to enact or enforce federal laws. The dormant Commerce Clause restricts states from discriminating against or unduly burdening interstate commerce even without congressional action. State laws must not purposefully discriminate and must regulate evenhandedly between in-state and out-of-state interests to avoid violating the dormant Commerce Clause.

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    Commerce Clause

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    Congress has broad powers to regulate interstate commerce under three categories: channels of commerce, instrumentalities of commerce, and activities that substantially affect interstate commerce. The Supreme Court gives Congress less deference now and scrutinizes whether the activity is economic in nature and whether it has traditionally been regulated by states. The Tenth Amendment places some limits in that Congress cannot compel states to enact or enforce federal laws. The dormant Commerce Clause restricts states from discriminating against or unduly burdening interstate commerce even without congressional action. State laws must not purposefully discriminate and must regulate evenhandedly between in-state and out-of-state interests to avoid violating the dormant Commerce Clause.

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    Download as doc, pdf, or txt
    122 views2 pages

    The Federal Commerce Power

    Uploaded by

    superxl2009
    Congress has broad powers to regulate interstate commerce under three categories: channels of commerce, instrumentalities of commerce, and activities that substantially affect interstate commerce. The Supreme Court gives Congress less deference now and scrutinizes whether the activity is economic in nature and whether it has traditionally been regulated by states. The Tenth Amendment places some limits in that Congress cannot compel states to enact or enforce federal laws. The dormant Commerce Clause restricts states from discriminating against or unduly burdening interstate commerce even without congressional action. State laws must not purposefully discriminate and must regulate evenhandedly between in-state and out-of-state interests to avoid violating the dormant Commerce Clause.

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    The Federal Commerce Power

    A. There are three broad categories of activities which Congress can constitutionally regulate:
    1. Channels. Congress can regulate the use of the channels of interstate commerce. Thus Congress can
    regulate in a way that is reasonably related to highways, waterways, and air traffic. Presumably,
    Congress can do so even though the activity in question in the particular case is quite intrastate.
    . !nstrumentalities. Congress can regulate the instrumentalities of interstate commerce, even though the
    threat may come only from intrastate activities. This category refers to people, machines, and other
    things used in carrying out commerce. "o presumably Congress could say that every truc# must have a
    specific safety device, even if the particular truc# in question was made and used in e$clusively within a
    single state.
    %. "ubstantially affecting commerce. Congress may regulate those activities having a substantial effect on
    interstate commerce.
    a. &eal bite
    i' Activity is commercial: if the activity itself is arguably commercial, then it doesn(t matter
    whether the particular instance of the activity directly affects interstate commerce, as long as the
    instance is part of a general class of activities that, collectively, substantially affect interstate
    commerce. Thus in Wickard v. Filburn type of fact pattern, )(s own wheat*growing activities are
    in a sense commercial, but they(re entirely intrastate+ however, when ta#en together with all
    other wheat*growing we have a substantial effect on interstate commerce* Congress can regulate
    even the solely*intrastate events.
    ii' Activity is not commercial: if the activity itself is not commercial, then there will apparently
    have to be a pretty obvious connection between the activity and interstate commerce. ,-e #now
    from Lopez that the lin# must be more obvious than the lin# between guns*in*schools and
    commerce'.
    b. .ittle deference to Congress. The Court won(t give much deference to the fact that Congress
    believed that the activity has the requisite substantial effect on interstate commerce. The Court will
    basically decide this issue for itself, from scratch. !t certainly will no longer be enough that Congress
    had a rational basis for believing that the requisite effect e$isted* the effect must in fact e$ist to the
    Court(s own independent satisfaction.
    c. Traditional domain of states. !f what(s being regulated is an activity the regulation of which has
    traditionally been the domain of the states, and as to which the states have e$pertise, the Court is less
    likely to find that Congress is acting within its Commerce power. Thus education, family law, and
    general criminal law are areas where the Court is li#ely to be especially suspicious of congressional
    interference.
    i' /ational solution. 0owever, a showing that a national solution is needed can outweigh the fact
    that the activity has traditionally fallen within the states( domain. This would be so, for instance,
    where one state(s choice heavily affects other states. Activities affecting the environment are an
    e$ample, since and air and water pollution migrate across state lines.
    ii' &oom for different solutions. !f it(s apparent that there(s room for a number of different state
    solutions with the best one able to attract additional state adherents over time, the Court is more
    li#ely to find the federal regulation invalid. Thus in .ope1, it seemed to have been significant to
    the ma2ority that one state(s treatment of the guns in school problem did not interfere with any
    other state(s treatment.
    3. Tenth Amendment as a limit on Congress( Power
    1. 4nce Congress, acting pursuant to its Commerce power, regulates the states, the fact that it is a state
    being regulated has virtually no practical significance. !f the regulation would be valid if applied to a
    private party, it is also valid as to the state. ,Garcia' "o long as Congress has merely passed a generally
    applicable law, this law can apply to the states 2ust as it does to private individuals, and there is no 15
    th

    Amendment violation. ,6$ample: 7inimum wage laws may be applied to state wor#ers 2ust as to private
    wor#ers.'
    . 8se of state(s lawma#ing mechanisms. 4ne aspect of state sovereignty is a state(s ability to ma#e and
    apply law, through legislative, 2udicial, and administrative functions. 6ven after 9arcia, there are limits
    to Congress( right to interfere with these state legislative or e$ecutive processes, and Congress will
    violate the 15
    th
    Amendment if it e$ceeds those limits. The Court has held that the federal government
    may not:
    a. Compel a state to enact or enforce a particular law or type of law ,New York v. U.S.'+ and
    b. Compel state:local officials to perform federally specified administrative tas#s. ,Printz v. U.S.'
    Dormant Commerce Clause
    A. The mere e$istence of the federal commerce power restricts the states from discriminating against or unduly
    burdening interstate commerce. This restriction is called the dormant commerce clause.
    3. Test: A state regulation which affects interstate commerce must satisfy each of the following requirements in
    order to avoid violating the dormant commerce clause:
    1. The regulation must be rationally related to a legitimate state end+ and
    . The regulatory burden imposed by the state on interstate commerce must be outweighed by the state(s
    interest in enforcing the regulation.
    C. !ntentional discrimination. A state law, which purposefully discriminates against interstate commerce, e.g.,
    by hoarding scarce resources against import or e$port to other states is virtually per se invalid.
    ). )iscriminatory means and effects. 6ven if a state law serves a legitimate police power ob2ective, the law
    must regulate evenhandedly. )ifferential treatment favoring in*state against out*of*state interests constitutes
    discrimination. A local regulation may be discriminatory even if it curtails commerce by other state subdivisions
    as well as out*of*state interests. A law using discriminatory means or having a discriminatory impact must serve
    a legitimate local purpose that cannot be served as well by nondiscriminatory means. -atch for the following:
    1. .aws designed to protect local businesses against interstate competition generally will be invalid.
    a. A state cannot place a surcharge on out*of*state mil# to ma#e that mil# as ,or more' e$pensive as
    mil# produced in the state.
    b. A state cannot e$empt local business or products from ta$ation or regulation that it see#s to apply to
    out*of*state businesses or products that come into the state.
    c. A law requiring all locally produced solid waste to be processed at a local waste processing business
    was held to violate the )CC because it was a trade barrier against competition from out*of*state
    waste producers.
    . !f a state law requires a business to perform specific business operations in the state to engage in other
    business activity within the state, the law will normally be held invalid as an attempt to discriminate
    against other states where the business operations could be performed more efficiently.
    %. A state law that ma#es it difficult or impossible for out*of*state purchasers to have access to in*state
    products ,other than products owned by the state itself' is li#ely to be held invalid.
    ;. A state may not prohibit private landfill or waste disposal facilities from accepting out*of*state garbage
    or waste or surcharge such waste unless Congress authori1es such discrimination.
    6. 8ndue 3urden. !n determining if a nondiscriminatory state regulation of interstate commerce is valid, the
    courts balance the local interests in maintaining the law against the burden on interstate commerce.
    1. !mportant state interests in trade, conservation, and environment weigh heavily in the balance but cannot
    be achieved by means, which e$cessively impede the free flow of interstate commerce.
    . "tate highway laws en2oy a heavy presumption of validity but, even here, states cannot unreasonably
    burden our nation Common 7ar#et system.
    <. 6$ception* /ecessary to !mportant "tate !nterest. A discriminatory state or local law may be valid if it
    furthers an important, non*economic state interest ,health or safety' and there are no reasonable alternatives
    available.
    9. 6$ception* "tate as 7ar#et Participant. -hen the state acts, not as a regulator, but as a participant in the
    mar#etplace, the )ormant Commerce Clause doctrine does not apply. 6ven state discrimination in favor of its
    own citi1ens is permissible. "ubsidies may involve such nonregulatory mar#et participation. The more state
    actions affect parties not in privity with the state, the more li#ely the state will be held to be a regulator.

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