Substantially affecting” commerce

t The biggest (and most interesting) category is that Congress may regulate those activities having a “substantial effect” on interstate commerce. Lopez. Key question: what does it mean to “substantially affect” interstate commerce? Lopez cites 3 factors (unclear as to what weight is assigned to each factor)

t Activity is commercial. If the activity itself is arguably “commercial,” then it doesn’t seem to matter whether the particular instance of the activity directly affects interstate commerce, as long as the instance is part of a general class of activities that, collectively, substantially affect interstate commerce. Thus, in the Wickard v. Filburntype of fact pattern – D’s own wheat-growing activities are in a sense “commercial,” but they are entirely intrastate; however, when taken together with all other wheat-growing we have a substantial effect on interstate commerce – Congress can regulate even the solely-intrastate events.

t Activity is not commercial. But if the activity itself is not “commercial,” then there will apparently have to be a pretty obvious connection between the activity and interstate commerce. (We know from Lopez that the link must be more obvious than the link between guns-in-schools and commerce, anyway). This is probably the main legacy of Lopez.

t Congress must make findings on regulated activity’s impact on the national economy. Little deference to Congress in this regard. SCt won’t give much deference (as it used to) to the fact that Congress believed that the activity has the requisite “substantial effect” on interstate commerce. SCt will basically decide this issue for itself, from scratch. It certainly will no longer be enough that Congress had a “rational basis” for believing that the requisite effect existed – the effect must in fact exist to the SCt’s own independent satisfaction.

t Traditional domain of states. If what’s being regulated is an activity the regulation of which has traditionally been the domain of the state regulation, and as to which the states have expertise, the SCt is less likely to find that Congress is acting within its Commerce power. Thus education, family law, and general criminal law are areas where the SCt is likely to be especially suspicious of congressional “interference.”

n National solution. However, the fact that the activity has traditionally fallen within the states’ domain can be outweighed by a showing that a national solution is needed. This would be so, for instance, where one state’s choice heavily affects other states. Activities affecting the environment are an example, since air and water pollution migrate across state boundaries.

n Room for different solutions. Conversely, if it’s apparent that there’s room for a number of different state solutions – with the “best” one able to attract different state adherents over time – the SCt is more likely to find the federal regulation invalid. (Thus, in Lopez, it seemed to have been significant to majority that one state’s treatment of the “guns in schools” problem did not interfere with any other state’s treatment.) This ties in with the commonly-expressed view that the strength of federalism is its ability to have each state serve as a separate “laboratory” performing its own “experiments.”

Date: 2015-01-02; view: 904