The Commerce Clause

AKA the "Hey, you-can-do-whatever-you-feel-like Clause." Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit.

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National Association of Home Builders v. Babbitt,
130 F.3d 1041 (D.C. Cir. 1997)

• San Bernardino County, California, wanted to build a new hospital.
• Construction would encroach on the last habitat of the Delhi Sands Flower-Loving Fly, the only remaining subspecies of its species of fly.
• There were fewer than 1,000 of the Flies left, all of whom lived within an eight-mile radius in the San Bernardino-Riverside County area.

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The Delhi Sands Flower-Loving Fly
(click above for information about the fly)

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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.

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Lopez’ Third Standard

• Does the law involve commercial activity?
• Does the law have a jurisdictional element?
• Are there legislative findings?
• Does the law trench on matters traditionally regulated by the states (i.e., create a general federal police power)?
• Does everything add up to too tenuous a tie between the law and the purposes of the Commerce Clause?