Commerce Clause

"The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Art. I, § 8, cl. 3

Jones & Laughlin Steel

Congress can regulate intrastate activities that "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions" (p.178).

Gibbons v. Ogden

The commerce clause authority excludes commerce which:

(1) is completely within a particular state,
(2) does not affect other states and
(3) is not necessary for the national government to regulate to carry out some of its general powers

Darby

"The power of Congress over interstate commerce ‘is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.’" (full opinion, citing Gibbons).

Darby

"Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause." (p.180)
 

Darby

Congress may regulate intrastate activities “which so affect interstate commerce as to make regulation of them appropriate means to” the legitimate end of regulating interstate commerce (p.180)

 

Filburn

Activities may be reached by Congress, even if local and even if not regarded as commerce, if they have "a substantial economic effect on interstate commerce" (p.150).

Gibbons

The public will be protected from abuse by "the wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections" (p. 145).

The Lopez Standards

Congress may regulate the uses of the channels of interstate commerce. This includes the power to protect interstate commerce from immoral or injurious uses.  (The channels of interstate commerce include interstate highways, shipping lanes, rivers, lakes, canals, railroad track systems, the mail, telegraph lines, air traffic routes, and electronic modes of commerce).

Congress can act to regulate and protect the instrumentalities of interstate commerce, as well as persons or things in interstate commerce, even if the threat comes from purely intrastate activities.   (The instrumentalities of interstate commerce include all cars and trucks, ships, aircraft and anything else that travels across state lines.)

Congress can regulate those (? commercial) activities substantially affecting interstate commerce (in the aggregate).

Lopez’ Third Standard

Does the law involve commercial activity? (p.187)

Does the law have a jurisdictional element? (p.188)

Are there legislative findings? (full opinion)

Does the law trench on matters traditionally regulated by the states (i.e., create a general federal police power)? (full opinion)

Does everything add up to too tenuous a tie between the law and the purposes of the Commerce Clause? (full opinion)

Partial Birth Abortion Law

“Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years or both. . . .”
        18 U.S.C. § 1531 (2004)