The Commerce Clause Today

The Commerce Clause Today

• From 1937 to 1995 the law was that Congress could regulate any activity if there was a substantial effect on interstate commerce.

• Lopez was a huge surprise in 1995 because it was the first time since pre-Roosevelt court packing plan (60 years) that the court had said that Commerce overreached its authority under the Commerce Clause. Pre-Lopez, Congress was basically given carte blanche under the Commerce Clause. Many felt giving Congress unlimited powers under the Commerce Clause was inconsistent with the Constitution’s enumerated powers.

• Balancing approach of the courts: Court rejected formalistic dichotomies (manufacturing/commerce—Congress could control all phases of business; direct/indirect). Instead, the court said a state regulation interfering with interstate commerce will be upheld if:

1. the regulation is rationally related to a legitimate state interest; and
2. the regulatory burden imposed on interstate commerce by this state regulation and any discrimination against interstate commerce by this regulation are outweighed by the state’s interest.

• Congress has almost unlimited authority to regulate under Article I powers, but the states can regulate if the two-prong test is met. If the state regulation is directly in contrast to federal legislation, federal legislation prevails under the preemption doctrine of the Supremacy Clause.
• Commerce clause used to get at acts of private discrimination not covered under §5 of the 14^th Amendment.