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Constitutional Law I Prof.

Spring, 2005


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

FEDERAL law pur- STATE laws See flowchart on

Note the
porting to regulate regulating Dorment Commerce
interstate commerce commerce Clause

Examine the object governed by the law Historic inquiry Modern inquiry (Lopez categories)

Does the object being Channels of IC

Is it commerce? regulated involve a
"commercial activity"?
current Instrumentalities
test of IC
Is it "interstate"? Is the object/activity
[foreign, tribal] "in" or does it "affect" Substantial relation
or local interstate comerce? to IC

congressional jurisdictional economic

Is it being Some cases suggested findings element activity

regulated? prohibition was not not dispositive without one of these, S.Ct. will
"regulation" decide sufficiency of nexus
with interstate commerce

Broadly Construed Strictly construed

(Post New-Deal) (Dual Federalism) US v. Morrison

The consequence of an affirmative answer to The consequence of a negative answer to these

these questions is to enhance federal power at Competing Visions questions is to enhance state power at the
the expense of the states of Federalism expense of the federal government

The law is (usually) Does the federal The law (usually)

but Can't
within Congress' law regulate the exceeds Congress'
ask tell
commerce power states themselves? commerce power
Gregory v.
No, it regulates Yes, states are
private parties subject to the law

The federal law is

Consider the unconstitutional
The federal law
TENTH because it
is constitutional invades the
reserved power
Note the similarity of the states

Private parties State law may be Only the states can

must comply PREEMPTED regulate this subject
with the law
If there is also a state law on the subject