Commerce Clause Flowchart
Commerce Clause Flowchart
Commerce Clause Flowchart
Professor Mate
Constitutional Law I
No
Apply:
1) Rational Basis Review
2) Substantial Effects Analysis
3) Aggregation principle (Wickard)
Professor Mate
Constitutional Law I
1. Identify the regulated activity/commodity, and what category the regulation falls
under.
2. Identify the type of law (single subject statute or comprehensive regulatory
scheme)
3. Standard of review is rational basis review although with a higher scrutiny of
findings for non-economic activity.
4. Other things to remember:
a. If the act or legislation regulates non-economic activity, if there a
jurisdictional element, it effectively moves the activity to category 1 or 2
and the act or legislation is constitutional
b. If the act or legislation regulates non-economic activity, and there is no
comprehensive federal regulatory scheme, analyze whether 10th
Amendment (state police powers) concerns apply
c. Activity v. Inactivity distinction: If the act or legislation creates activity
which it seeks to regulate, e.g. compels or requires individuals to engage
in commercial activity, Congress lacks power to create such activity
under the Commerce Clause per NFIB v. Sebelius (individual mandate).