The Federal Commerce PowerA. There are three broad categories of activities which Congress can constitutionally regulate:

1. Channels. Congress can regulate the use of the channels of interstate commerce. Thus Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic. Presumably, Congress can do so even though the activity in question in the particular case is quite intrastate.

2. Instrumentalities. Congress can regulate the instrumentalities of interstate commerce, even though the threat may come only from intrastate activities. This category refers to people, machines, and other things used in carrying out commerce. So presumably Congress could say that every truck must have a specific safety device, even if the particular truck in question was made and used in exclusively within a single state.

3. Substantially affecting commerce. Congress may regulate those activities having a substantial effect on interstate commerce.a. Real bite

i) Activity is commercial: if the activity itself is arguably commercial, then it doesn’t matter whether the particular instance of the activity directly affects interstate commerce, as long as the instance is part of a general class of activities that, collectively, substantially affect interstate commerce. Thus in Wickard v. Filburn type of fact pattern, D’s own wheat-growing activities are in a sense commercial, but they’re entirely intrastate; however, when taken together with all other wheat-growing we have a substantial effect on interstate commerce- Congress can regulate even the solely-intrastate events.

ii) Activity is not commercial: if the activity itself is not commercial, then there will apparently have to be a pretty obvious connection between the activity and interstate commerce. (We know from Lopez that the link must be more obvious than the link between guns-in-schools and commerce).

b. Little deference to Congress. The Court won’t give much deference to the fact that Congress believed that the activity has the requisite substantial effect on interstate commerce. The Court will basically decide this issue for itself, from scratch. It certainly will no longer be enough that Congress had a rational basis for believing that the requisite effect existed- the effect must in fact exist to the Court’s own independent satisfaction.

c. Traditional domain of states. If what’s being regulated is an activity the regulation of which has traditionally been the domain of the states, and as to which the states have expertise, the Court is less likely to find that Congress is acting within its Commerce power. Thus education, family law, and general criminal law are areas where the Court is likely to be especially suspicious of congressional interference.i) National solution. However, a showing that a national solution is needed can outweigh the fact

that the activity has traditionally fallen within the states’ domain. This would be so, for instance, where one state’s choice heavily affects other states. Activities affecting the environment are an example, since and air and water pollution migrate across state lines.

ii) Room for different solutions. If it’s apparent that there’s room for a number of different state solutions with the best one able to attract additional state adherents over time, the Court is more likely to find the federal regulation invalid. Thus in Lopez, it seemed to have been significant to the majority that one state’s treatment of the guns in school problem did not interfere with any other state’s treatment.

B. Tenth Amendment as a limit on Congress’ Power1. Once Congress, acting pursuant to its Commerce power, regulates the states, the fact that it is a state

being regulated has virtually no practical significance. If the regulation would be valid if applied to a private party, it is also valid as to the state. (Garcia) So long as Congress has merely passed a generally applicable law, this law can apply to the states just as it does to private individuals, and there is no 10th Amendment violation. (Example: Minimum wage laws may be applied to state workers just as to private workers.)

2. Use of state’s lawmaking mechanisms. One aspect of state sovereignty is a state’s ability to make and apply law, through legislative, judicial, and administrative functions. Even after Garcia, there are limits

to Congress’ right to interfere with these state legislative or executive processes, and Congress will violate the 10th Amendment if it exceeds those limits. The Court has held that the federal government may not:a. Compel a state to enact or enforce a particular law or type of law (New York v. U.S.); andb. Compel state/local officials to perform federally specified administrative tasks. (Printz v. U.S.)

Dormant Commerce ClauseA. The mere existence of the federal commerce power restricts the states from discriminating against or unduly burdening interstate commerce. This restriction is called the dormant commerce clause.B. Test: A state regulation which affects interstate commerce must satisfy each of the following requirements in order to avoid violating the dormant commerce clause:

1. The regulation must be rationally related to a legitimate state end; and2. The regulatory burden imposed by the state on interstate commerce must be outweighed by the state’s

interest in enforcing the regulation.C. Intentional discrimination. A state law, which purposefully discriminates against interstate commerce, e.g., by hoarding scarce resources against import or export to other states is virtually per se invalid.D. Discriminatory means and effects. Even if a state law serves a legitimate police power objective, the law must regulate evenhandedly. Differential treatment favoring in-state against out-of-state interests constitutes discrimination. A local regulation may be discriminatory even if it curtails commerce by other state subdivisions as well as out-of-state interests. A law using discriminatory means or having a discriminatory impact must serve a legitimate local purpose that cannot be served as well by nondiscriminatory means. Watch for the following:

1. Laws designed to protect local businesses against interstate competition generally will be invalid.a. A state cannot place a surcharge on out-of-state milk to make that milk as (or more) expensive as

milk produced in the state.b. A state cannot exempt local business or products from taxation or regulation that it seeks to apply to

out-of-state businesses or products that come into the state.c. A law requiring all locally produced solid waste to be processed at a local waste processing business

was held to violate the DCC because it was a trade barrier against competition from out-of-state waste producers.

2. If a state law requires a business to perform specific business operations in the state to engage in other business activity within the state, the law will normally be held invalid as an attempt to discriminate against other states where the business operations could be performed more efficiently.

3. A state law that makes it difficult or impossible for out-of-state purchasers to have access to in-state products (other than products owned by the state itself) is likely to be held invalid.

4. A state may not prohibit private landfill or waste disposal facilities from accepting out-of-state garbage or waste or surcharge such waste unless Congress authorizes such discrimination.

E. Undue Burden. In determining if a nondiscriminatory state regulation of interstate commerce is valid, the courts balance the local interests in maintaining the law against the burden on interstate commerce.

1. Important state interests in trade, conservation, and environment weigh heavily in the balance but cannot be achieved by means, which excessively impede the free flow of interstate commerce.

2. State highway laws enjoy a heavy presumption of validity but, even here, states cannot unreasonably burden our nation Common Market system.

F. Exception- Necessary to Important State Interest. A discriminatory state or local law may be valid if it furthers an important, non-economic state interest (health or safety) and there are no reasonable alternatives available.G. Exception- State as Market Participant. When the state acts, not as a regulator, but as a participant in the marketplace, the Dormant Commerce Clause doctrine does not apply. Even state discrimination in favor of its own citizens is permissible. Subsidies may involve such nonregulatory market participation. The more state actions affect parties not in privity with the state, the more likely the state will be held to be a regulator.