THE COMMERCE CLAUSE First: Make sure you have read section 1-4c of the textbook entitled "The Commerce Clause." The Commerce Clause has played a significant role in the ability of the U.S. Congress to create federal law. Article 1, Section 8 of the U.S. Constitution sets forth the powers of the U.S. Congress. Clause 3 of Article 1, Section 8 is where you find the Commerce Clause, which states as follows: The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes T U.S. CONST. art. 1, 8, cl. 3. Seems pretty straight forward, right? Congress can use its power under the Constitution to make laws that affect commerce "among the several states" i.e., interstate commerce. That's it. The end. Class dismissed. But, what does "commerce" really mean? Is it defined? And, how much of an impact does a federal regulation have to have on interstate commerce to allow Congress to enact it? Not so easy after all. This gray area has given lawyers plenty to argue about, and courts have certainly had no shortage of opinions on the matter. If you were operating a business that was being subjected to harsh penalties under a new federal regulation, what would you argue as your defense to the penalties? You would argue the facts, of course: I didn't do it!! But, what if the facts were not on your side? You would have to think bigger. More foundational. What if you were able to take down the law in its entirety? No law, no penalties. That would work, but how would you do it? Challenge the law at its core: Did Congress have the power to enact the law in the first place? Congress has multiple powers under which it can enact legislation as outlined in Article 1, Section 8 of the U.S. Constitution, but let us assume for the purpose of this discussion that Congress used the Commerce Clause as its basis to enact the law penalizing your business. What would your defense be? You could argue that the type of conduct being regulated by this new law does not affect interstate commerce enough to trigger the power of Congress under the Commerce Clause, thus leaving Congress without the authority to enact the legislation. People and businesses have been challenging federal laws under this very concept for a long time. Your argument would certainly be guided by thelmany opinions of the Supreme Court of the United States on the subject. The Supreme Court's interpretation of the Commerce Clause has shifted back and stricter approach. The intricacies of this pendulum of jurisprudence are beyond the scope of this class, but the Supreme Court has clarified that it will look at the following broad categories when determining whether Congress may enact legislation using the Commerce Clause: Congress may regulate the use of the channels of interstate commerce (e.g., highways). Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce (e.g., transportation used in interstate commerce, communications). Congress has the power to regulate those activities that have a substantial effect on interstate commerce. Furthering this discussion, how would a law prohibiting racial discrimination affect interstate commerce? Or does it? The case of Heart of Atlanta Motel, Inc. v. United States answers this question and is a good example of a set of facts that tested the power of Congress to pass legislation that did not appear on its face to regulate interstate commerce: the Civil Rights Act of 1964. Question 1: After reading the Heart of Atlanta case synopsis in Chapter 1 of your textbook (Classic Case 1.1), do you think the outcome of the case would have been different if, instead of a motel that serviced out-of-state guests, the business at issue was a small, privately owned retail business that sold high-end clothing and jewelry in the DFW metroplex? How would such a business affect (or not affect) interstate commerce? What factors would be important in your analysis? I Keep in mind that the focus of the question is not so much the importance of prohibiting acts of racial discrimination, but whether regulating acts of racial discrimination of the local retail company sufficiently affects interstate commerce such that Congress can regulate those actions using its power granted in the Commerce Clause. Question 2: Keeping the above discussion and categories in mind, do you think Congress has the authority under the Commerce Clause to enact a law that makes it illegal to possess a firearm within a school zone? Does possession of a firearm in a school zone have a substantial effect on interstate commerce? Do you think these laws stretch the reach of the Commerce Clause power too far? Please discuss. As with the last question, do not discuss your personal beliefs on gun regulation, but instead focus your answer on the conduct being regulated (firearm possession near a school) and whether interstate commerce is affected by it. This is not a question about the Second Amendment. Focus on the Commerce Clause! Discuss the categories above in your answer. NOTE: This is not a law school class, and you are not answering an essay question on the bar exam. The goal is not to accurately recite 200 plus years of constitutional law, but I do want you to think critically about how certain federal regulations and businesses (even if local) might impact interstate commerce. Also, consider what the modern "instrumentalities" and "channels" of interstate commerce might be