COMMERCE CLAUSE: MARSHALL

1. GENERAL BACKGROUND
a. Commerce clause provides an enumerated power to Congress.
b. Marshall held this power is exclusively federal
c. Marshall set up a subject, object, and means analysis in two cases:
i. Gibbons v Ogden (subject/object)
ii. McCulloch v. Maryland (means)
2. SUBJECT ANALYSIS: Identify the subject matter of a statute and determine whether it aligns
with the subject matter of an enumerated power, in this case, the Commerce Clause.
a. Background
i. The subject of a law is the letter and language of the law.
ii. The Commerce Clause in Article 1, Section 8, Clause 3 states that Congress
shall have the power to regulate commerce among the several states.
b. In Gibbons, Marshall defined regulate, commerce, and among the several states
interpreting the Commerce Clause to reserve the power to regulate interstate commerce
among the states to Congress. (Gibbons, pt 3, ch. 3)
i. Regulate: the power to prescribe the rule by which commerce is to be
governed. (p. 6)
ii. Commerce: Traffic, buying and selling, the transfer of commodities to
another, every species of commerce intercourse, including navigation (Gibbons,
p. 5, pt 3, ch. 3)
iii. Among the several states
a.
Among: Intermingled with
b. Commerce does not cease to be among the states when it crosses the
border and enters another state.
c. Just because a particular activity is taking place within one particular
state doesnt mean commerce ceases to be interstate in nature.
(Gibbons, p. 5, in pt. 3, ch. 3)
d. Conversely, Intrastate would be activities reserved only to the police
powers (health, safety, morals, welfare) of the state, completely
internal.
c. HERE: Application/Analysis: (two steps)
1. The subject of the statute at issue: what is its purpose? Generally describe.
2. Does the statute in question meet the definitions of regulate, commerce,
and among the several states? (Tuomola tip: run briefly through each)
3. IMP: If the statute satisfies/comports with the subject matter of the Commerce
Clause, it is proper to then apply the Object Analysis.

3. OBJECT ANALYSIS: the statute must not only have the same subject matter, but must also be
calculated to effect the same object or purpose.
a. Step One: What is the object of the statute in issue? (i.e. what are its goals, purposes)
i. The object is the purpose of spirit of the law
b. Step Two: The object must be calculated to effect the same overarching or other
purposes of the Commerce Clause below: (p. 5 Gibbons)
1. Overarching Purpose of Commerce Clause: to create a single economic unit,
to promote free trade and a common market among the states. (3 sub-purposes)
2. To remove discriminatory trade barriers/burdens on trade with other states, or
protectionist policies. (p. 6)
3. To foster harmonious commercial relationships (i.e. free trade) and
4. Preempt the states from exercising their police powers (health, safety, morals,
welfare) in such a way as to unduly burdens or interferes with interstate
commerce. (pt 3, ch. 3, p 14)
c. Step Three: is the statute in the scope of the Constitution, NOT prohibited by it or
General Principles of Law (LONANG)?
4. MEANS (NEXUS) ANALYSIS:
a. The means of the act to accomplish the object must be
i. Calculated to effect the object (not pretext a power not reserved for them)
ii. Within the scope of and prohibited by the Constitution
iii. Not prohibited by general principles of law (LONANG)
b. The necessity or prudence of a given statute is not a judicial question and must be left for
the legislature.
5. NECESSARY AND PROPER: [Catch-All] If the subject matter of a statute does NOT match
that of a constitutional provision, can it be saved by the Necessary and Proper Clause?
a. The statute must be plainly adapted to achieve the object of some other enumerated
power (and not a mere pretext)?
b. The means adopted shall NOT be prohibited by either the Constitution or LONANG.
c. The court may NOT make a determination as to the necessity or wisdom of the statute.
6. A statute that passes these steps are Constitutional.

COMMERCE CLAUSE: MODERN APPROACH/CURRENT SCOTUS

1. Current SCOTUS: The current SCOTUS would ignore Marshalls analysis.
a. NO subject or object or plainly adapted test.
b. The commerce power is held concurrently by federal and state.
c. They apply rational basis. (Raich)
d. Congress essentially has general power under the commerce clause.
2. History: Demise of Marshall: Modern view deviated from Marshallin several steps: CCWSRN

Cooley v. Board of Wardens Undermining Object Test CLBO

Court decided the commerce clause was concurrent between the states and Federal gov.
The state could regulate interstate commerce so long as it was regarding local matters.
While the test was done away with, concurrent power remained.
Burdens on interstate commerce was permitted.
The result was that the object test was undermined.
Champion v. Ames Prohibition Principle + Ignoring Object/Plainly Adapted
Court created the prohibition principle, permitting any court to prevent nuisances
injurious to health, safety, or morality of the people.
There are channels of commerce that require regulation in add. to promoting FT.
Eliminated the object test + thus plainly adapted, all that remained is the subject test.

Wickard v. Filburn Substantial Effects A(gspqp)

a. The court replaced the subject test with the substantial effects test, which allowed
Congress to regulate any activity under the Commerce Clause even if the activity were
not commercial or interstate in nature so long as in the aggregate that activity had a
substantial effect on interstate commerce.
i. Congress only had to act for the general welfare of its citizens and could use any
means to do so, so long as they werent prohibited by a constitutional provision.
ii. There was now no object or subject test.
iii. Plainly adapted and pretexts are no irrelevant.
iv. It is a quantitative and not a logical nexus.
v. The method of proving HOW an activity has a sub. effect hasnt been resolved.
States v. Lopez Save Federalism
a. The court attempted to amend the substantial effects test, stating that only economic
activity in the aggregate, which had a substantial effect on commerce, could be regulated.
b. Court encouraged the legislature to bypass this requirement, by: (bcn)
vi. Making the act an essential part of a broader scheme
vii. Providing a more comprehensive legislative record to prove a substantial effect.
viii. Require a nexus to interstate commerce.

Raich v. Ashcroft Possession is an Economic Activity

Initiated a rational basis standard of review, where the Court defers to Congresss
empirical determination that a statute has a conceivable substantial effect on interstate
commerce or upon the statutory scheme
Court expanded the definition of economic activities and permitted the bundling of
economic activities with related activities. Possession constituted an economic activity.
Scalia: possession is NOT eco activity, but was admissible because it was part of a larger
regulatory scheme of economic activities (see Lopez).

NFIB v. Sebelius
a. SCOTUS held that the word regulate implies that there is activity to be regulated. It
may NOT force an individual to perform an activity (i.e. vaccines).

b. A law regulating the failure to do something will be struck down as improper.)