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)
U.S. v. Morrison
“While we need not adopt a categorical rule . . ., thus far . . . our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” (p.198)