Three main issues under the Commerce Clause: What is commerce? Commerce = intercourse/exchange (Gibbons v. What does the several states” mean? “among Among = intermingled with (Gibbons v. Ogden) Does the 10th Amendment limit Congress/relationship with Commerce Clause? Current 10th Amendment can use of Commerce Clause (US v. Lopez) – Basic Timeline: Constitutional Convention Commerce Clause was intended as a response to lack of trading – between states to promote the national market. – Early 20th century Court frequently struck down national regulatory laws as exceeding the – proper scope of the commerce power. Beginning in 1937 began to show great deference to congressional action under the – commerce clause 1995 Lopez decision marked a partial return to judicial intervention to prevent the – commerce clause from becoming an unlimited national police power. Pre-New Deal COMMERCE = INTERCOURSE, AMONG = INTERMINGLED WITH (Gibbons v. Ogden) Among commerce that is completely internal or does not affect other states ≠ Note: Very expansive view of power under the Commerce Clause. 3 Principal Approaches to the Commerce Clause: Direct/Indirect Test Activity must have a direct effect on interstate commerce for – Congress to regulate under the Commerce Clause it is not enough that the good is – manufactured for export for another state. Manner in which activity occurs, not extent matters. (US v. E.C. Knight Co.) Substantial Economic Effects Test Whenever intrastate and interstate activities – are closely tied together so that one impacts the other, then Congress can regulate impacts” and SUBSTANTIAL relation to interstate commerce – “practical – “CLOSE such that it is NECESSARY to regulate”. (Houston E. & W. T. Ry. Co. v. US) Stream of Commerce Test Some local activities can be regulated by Congress – because they could be viewed as themselves commerce or as an integral part “in” of the of commerce” connection”. (Swift v. Tyson) “current – “local Commerce Clause used as Police Regulation” “National Congress used the commerce power increasingly in the late 19th century to deal with not only economic problems, but morality problems. where good itself is dangerous” “Cases Champion v. Ames (“the lottery case”) lottery tickets were subjects of – traffic subjects of commerce within regulatory power of Congress Hipolite Egg Co. v. US (“bad eggs”) power to seize goods is within – Congress’s power to bar goods from interstate commerce may adopt not only means necessary but convenient to its “Congress
Three main issues under the Commerce Clause: What is commerce? Commerce = intercourse/exchange (Gibbons v. What does “among the several states” mean? Among = intermingled with (Gibbons v. Ogden) Does the 10th Amendment limit Congress/relationship with Commerce Clause? Current – 10th Amendment can use of Commerce Clause (US v. Lopez) Basic Timeline: Constitutional Convention – Commerce Clause was intended as a response to lack of trading between states – to promote the national market. Early 20th century – Court frequently struck down national regulatory laws as exceeding the proper scope of the commerce power. Beginning in 1937 – began to show great deference to congressional action under the commerce clause 1995 Lopez decision – marked a partial return to judicial intervention to prevent the commerce clause from becoming an unlimited national police power. Pre-New Deal COMMERCE = INTERCOURSE, AMONG = INTERMINGLED WITH (Gibbons v. Ogden) Among ≠ commerce that is completely internal or does not affect other states Note: Very expansive view of power under the Commerce Clause. 3 Principal Approaches to the Commerce Clause: Direct/Indirect Test – Activity must have a direct effect on interstate commerce for Congress to regulate under the Commerce Clause – it is not enough that the good is manufactured for export for another state. Manner in which activity occurs, not extent matters. (US v. E.C. Knight Co.) Substantial Economic Effects Test – Whenever intrastate and interstate activities are closely tied together so that one impacts the other, then Congress can regulate – “practical impacts” – “CLOSE and SUBSTANTIAL relation to interstate commerce such that it is NECESSARY to regulate”. (Houston E. & W. T. Ry. Co. v. US) Stream of Commerce Test – Some local activities can be regulated by Congress because they could be viewed as themselves “in” commerce or as an integral part of the “current of commerce” – “local connection”. (Swift v. Tyson) Commerce Clause used as “National Police Regulation” Congress used the commerce power increasingly in the late 19th century to deal with not only economic problems, but morality problems. “Cases where good itself is dangerous” Champion v. Ames (“the lottery case”) – lottery tickets were subjects of traffic subjects of commerce within regulatory power of Congress Hipolite Egg Co. v. US (“bad eggs”) – power to seize goods is within Congress’s power to bar goods from interstate commerce “Congress may adopt not only means necessary but convenient to its
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