Dr. Roger Ward

 It is a source of Congressional power to regulate interstate commerce is the Commerce Clause in Article I, Section 8.  According to Article I, Section 8., the Congress shall have Power to regulate Commerce with foreign Nations, and among the several States.  This power includes the power to regulate interstate commerce itself as well as the power to regulate local commerce if that local commerce has a substantial economic effect on interstate commerce.

 The Commerce Clause is the primary tool relied on by Congress to regulate domestic affairs.  To prevent individual states from erecting trade barriers to interstate and foreign trade.  Create a common market among the states.

 The use of the channels of interstate commerce. ◦ The terms and conditions on which goods or services are sold interstate. ◦ Restriction of the types of goods that can be shipped interstate.  The instrumentalities of interstate commerce such as railroads, airlines, and trucking companies. ◦ Including the power to protect from threats that come from interstate or local activities. ◦ Congress may impose safety standards on intrastate carriers that use the same railway tracks, airspace, or highways as interstate carriers, in order to prevent them from endangering interstate carriers that operate on the same routes.  Using the Necessary and Proper Clause in connection with the CC ◦ The commerce power also includes the authority to regulate any economic activity that has a substantial relationship with interstate commerce or that substantially affects that commerce- the “substantially affects” test.

 The Supreme Court has interpreted the Commerce Clause as granting Congress the power to regulate any activity that has any appreciable effect on interstate commerce.  The statute should regulate evenhandedly on the different states, unless the burden imposed on such commerce is clearly excessive in relation to the local benefits.  If a legitimate local purpose is found, then the question becomes one of degree.  The extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

 The court will first determine whether the state law openly discriminates against interstate commerce in favor of intrastate economic interests.  If the law is facially neutral, applying impartially to in-state and out-of-state businesses, the analysis moves to the second step, a balancing of the local benefits against the interstate burdens.

 Facts:  Washington state law enacted in March 1998 which made it illegal to send a commercial message that uses a third party's domain name without permission; that contains false or missing routing information; or with a false or misleading subject line.  The law applies if a message is sent from within Washington; if the sender knows that the recipient is a Washington resident; or if the registrant of the domain name contained in the recipient's address will confirm upon request that the recipient is a Washington resident.

 In 1997, Heckel developed a 46-page on-line booklet entitled 'How to Profit from the Internet.'  Heckel used the Extractor Pro software program, which harvests e- mail addresses from various on-line sources and enables a spammer to direct bulk-mail messages.  In June 1998, the Consumer Protection Division of the Washington State Attorney General's Office received complaints from Washington recipients of Heckel's UCE messages.  Responding to the June complaints, David Hill, an inspector from the Consumer Protection Division, sent Heckel a letter advising him of the existence of the Act.  The State of Washington filed suit against Oregon resident Jason Heckel, alleging that his transmissions of electronic mail ( ) to Washington residents violated Washington's commercial electronic mail act.

 Heckel’s raise a Commerce Clause defense.  The issue: Does the Act, which prohibits misrepresentation in the subject line or transmission path of any commercial message sent to Washington residents or from a Washington computer, unconstitutionally burden interstate commerce?  Ruling: ◦ The Act is not facially discriminatory. The Act applies evenhandedly to in-state and out-of-state spammers. ◦ The Act protects the interests of three groups--ISPs, actual owners of forged domain names, and users. ◦ To be weighed against the Act's local benefits, the only burden the Act places on spammers is the requirement of truthfulness, a requirement that does not burden commerce at all but actually 'facilitates it by eliminating fraud and deception.'

 [United States v. Lopez (1995): Congress passed the Gun Free School Zones Act, prohibiting guns in school zones. ◦ The court held that in order to push the limits of the Commerce Clause, the commercial activity must be a) “economic” in nature or the regulation of the activity must be “an essential part of a larger economic activity.  [United States v. Morrison (2000): Congress passed the Violence Against Women Act, allowing a new civil cause of action against “a person who commits a crime of violence motivated by gender.” ◦ The court held that “Gender-motivated crimes are not economic activity.”