1. COMMERCE CLAUSE Test Review

2. How to answer the essay questions!
How is commerce defined in this era?
What is commerce (or in the case of the second era, what is NOT commerce)
Is it interstate (or, depending on the era, does it have a substantial effect on interstate commerce?)
Is there a case directly on point?
Or can you distinguish a case that is on point
(This case is like _______ because it has similar facts)
(This case is not like ________ because these facts are different).
Reach a conclusion!
It is not enough to say, “well, this case is under the third era, so it is commerce.”

3. Background on the Commerce Clause
The Commerce Clause if found at Article 1, Sec. 8
This grants Congress the exclusive power to regulate interstate and foreign commerce
To fall within Congress’s power under the Commerce Clause, a law must:
Regulate the channels of interstate commerce;
Regulate the instrumentalities of interstate commerce (including persons and things); or
Regulate activities that have a substantial effect on interstate commerce

4. Background on the Commerce Clause
Commerce is the exchange or buying and selling of commodities on a large scale involving transportation from place to place
Inter-state commerce is commerce between parties of 2 or more states
Intra-state commerce is commerce between parties within one state

5. FIRST ERA –
The Commerce Clause is interpreted broadly during this time period
Cases:
Gibbons v. Ogden:
Ferry Boat case
Holding:
Commerce includes all phases of business, including navigation
Commerce within a state can be regulated if it affects interstate commerce

6. FIRST ERA – 1824-1890 Cases cont. Brown v. Maryland
Taxation by Maryland of imported goods in their original package
Holding:
Goods in their original package are under federal jurisdiction and thus not subject to state regulation
Cooley v. Bd. of Warden
Requirement to hire a local pilot
Certain local conditions that may affect interstate commerce may be regulated at the local level

7. FIRST ERA – 1824-1890 Sample analysis question from test:
Maine requires lobster fisherman to hire a local captain to pilot the lobster boats within 15 nautical miles of the shore. The reasoning for this is because of certain tide conditions and hidden reefs.
Is this law constitutional? Why or why not?

8. FIRST ERA – 1824-1890 Sample analysis answer from Quiz:
How is commerce defined in this era?
“During this era, commerce is broadly defined to include all phases of business, including navigation. Here, lobster fishing is a form of commerce.”
Is there a case directly on point?
“This case is like Cooley v. Bd. Of Wardens because there are local conditions that may cause a dangerous situation for the boats. Because of these dangerous conditions, that are local in nature, this type of regulation would be upheld. OR
“This case is unlike Cooley v. Board of Wardens because the conditions sought to regulate are not local enough in nature. Moreover, tide conditions and currents can be mapped and do not create such an unknown danger as was the case in Cooley, which was decided hundred of years ago. Therefore, this regulation is not constitutional.”

9. SECOND ERA – 1890-1937 Commerce clause is narrowly defined. Cases:
In fact, the Court expressed a strong opposition to federal government regulation over inter-state commerce
Cases:
U.S. v. E.C. Knight Co.
Sherman Anti-Trust Act used to attempt to bust up a sugar monopoly
Holding:
Commerce does not include manufacturing

10. SECOND ERA – 1890-1937 Cases cont. Hammer v. Dagenhart
Regulation prohibiting child labor
Holding:
Commerce does not include production
Carter v. Carte Coal Co.
Federal regulation regarding employing workers, setting wages and working hours, and mining coal
Regulation unconstitutional because it is attempting to regulate things that were part of the local process of production

11. SECOND ERA – 1890-1937 Sample analysis questions from test:
Congress passed a law prohibiting assembly line workers from working more than 40 hours a week. Based upon the cases in the Second Era, would this regulation be upheld as constitutional? Why or Why not?
Congress passes a law prohibiting companies from contracting with a third- party to produce certain goods. MWT Corp attempts to contract with Herrick Corp to produce the boxes necessary to pack the goods produced by MWT Corp. The federal government sues to prohibit the contract. Is this constitutional? Why or why not?

12. SECOND ERA – 1890-1937 Sample analysis questions from test:
Congress passed a law prohibiting assembly line workers from working more than 40 hours a week. Based upon the cases in the Second Era, would this regulation be upheld as constitutional? Why or Why not?
How is commerce defined in this era?
In the second era, commerce did not include wages and condition of employment. Therefore, this activity is not commerce.
Is there a case directly on point?
This case is like Carter v. Carter Coal Company because, in Carter, the Court struck down a regulation regulating terms and conditions of employment. As a result, based upon Carter, this regulation will be struck down.

13. SECOND ERA – 1890-1937 Sample analysis questions from test:
Congress passes a law prohibiting companies from contracting with a third- party to produce certain goods. MWT Corp attempts to contract with Herrick Corp to produce the boxes necessary to pack the goods produced by MWT Corp. The federal government sues to prohibit the contract. Is this constitutional? Why or why not?
How is commerce defined in this era?
“Under the second era, commerce does not include manufacturing and production. Here, the activity at issue involves production.
Is there a case directly on point?
This case is like Hammer v. Dagenhart because, in that case, the Court found the production was not commerce. Therefore, this law will be struck down.

14. THIRD ERA (1937 – 1995)
Commerce clause (extremely) broadly defined during this era
Not a single case was found unconstitutional on the basis of Congress exceeding its powers under the commerce clause during this era
Case:
NLRB v. Jones & Laughlin Steel Corp.
U.S. v. Darby
Wickard v. Filburn
Heart of Atlanta v. U.S./Katzenbach v. McClung

15. THIRD ERA (1937 – 1995) NLRB v. Jones & Laughlin Steel Corp.
Is NLRA consistent with the commerce Clause (Yes)
Collective bargaining is “an essential condition of industrial peace” and that a lack of industrial peace may affect interstate commerce
Significant case for 2 reasons:
Marked the end of the Supreme Court striking down new deal economic legislation
Greatly increased Congress’s power under the commerce clause

16. THIRD ERA (1937 – 1995)
U.S. v. Darby
Is the Fair Labor Standards Act constitutional? (Yes)
Because substandard working conditions affect interstate commerce, Congress has the power to regulate against substandard labor conditions
Expressly overruled Hammer v. Dagenhart
Wickard v. Filburn
Wheat case!
Even if the activity is local, Congress may still regulate the activity under the commerce clause if it exerts a substantial economic effect on interstate commerce.

17. THIRD ERA (1937 – 1995) Heart of Atlanta v. U.S./Katzenbach v. McClung
Civil Rights Act cases
Segregation imposes an artificial restriction on the flow of merchandise, which will have an effect on interstate commerce
Places of public accommodations had no “right” to select guests as they saw fit, particularly in a manner that effects interstate commerce

18. FOURTH ERA (1995 - present) Mixed interpretation of commerce clause
THE KEY POINT IN THE ANALYSIS IS WHETHER THE STATUTE REGULATES AN ECONOMIC ACTIVITY
Case:
U.S. v. Lopez
U.S. v. Morrison
Gonzalez v. Raich

19. FOURTH ERA (1995 - present) U.S. v. Lopez U.S. v. Morrison
Gun Free School Zone Act
Not a valid exercise of congressional power under the commerce clause because this Act did not regulate an area of economic activity
U.S. v. Morrison
Violence Against Women Act
Gonzalez v. Raich

20. FOURTH ERA (1995 - present) Gonzalez v. Raich
California medicinal marijuana law case
Federal government could regulate the sell, distribution, manufacture, possession of marijuana because the regulation involved an economic activity.
Further, while the facts in the case only involved intrastate activity, the cumulative effect of this intrastate activity may substantially affect interstate activity (think back to the wheat case, Wickard v. Filburn

21. 3rd/4th Era Sample Test Question
Congress passes a law that allows for the banning of vaping in restaurants, known as “Don’t Vape, Don’t Tell”. The basis for the law is that the act of vaping creates an unbearable, smelly cloud in restaurants, thereby driving away business. By special ordinance, Kanawha County passes a law that permits vaping in places that serve food, as long as there are gambling machines present.
Liz’sssss Place, a place that serves food and has gambling machines allows vaping. The FBI, in a sting operation, busts in while people are vaping, gamblin’ and eatin’. Liz, the owner, is arrested for violated the federal “Don’t Vape, Don’t Tell” law. She is clearly guilty, so her smart lawyer argues that the “Don’t Vape, Don’t Tell” law is unconstitutional.
Analyze this question under the 3rd era precedent. Is the law unconstitutional?
Now, analyze this question under the 4th era precedent. Is the law unconstitutional?