COMMERCE CLAUSE – STANDARD OF REVIEW

CONGRESS STATES

Pre-1937 - Streams of commerce (Daniel Ball) - Local commerce activities (police powers)
(Early Cases) - Local Activities that directly affect - Means of production (Child labor)
IC (Gibbons) - Activities that indirectly affect IC, if Congress does
- Can prohibit commerce (Lottery not regulate, and no burden on IC (Cooley)
case) - DCC (dormant) – If law discriminatory or burden IC =
unconstitutional (Cooley)
1937-1965 - Substantially effect: Local - Purely local commerce activities (police powers)
(New Deal) activities that substantial effect on - Activities substantially related with IC not regulated
IC (Labor – NRLB; Manufacture – by Congress (South Carolina)
Darby) - Balance b/w benefits (police powers) and burden on
- Cumulative effect: Individual IC (DCC) (Southern Pacific)
activity that in the aggregate - Least restrictive test – To discriminatory law
affects IC (Wickard) (important state interest / least discriminatory
alternative) (Dean Milk)
1965-1995 - Activities that in the aggregate - Burden IC: Pike balancing Test – Rational basis /
(Modern discriminate IC (Heart of ATL; means selected reasonable (Heart of ATL)
Commerce) Katzenbach) - Discriminate IC: Strict scrutiny – Compelling
- Regulate wages of State interest / nondiscriminatory options (Hughes)
employees (Garcia) - Market Participant Excep: State may favor its
- Can’t compel or coerce States to citizens if acting as Market Participant and no
enact laws (N.Y v. U.S.) Market Regulator (Reeves)
- Limitation P&I: If burden fundamental right / no
substantial justification (Camden)
1995-Actual - ECONOMIC activities substantially - Non-economic activities, that are tenuously related
related to interstate commerce, to IC (Morrison)
channels & instrumentalities - Activities no regulated by Congress (Silkwood)
(Lopez)
- Can’t commandeer States to
administer Federal Program
(Printz)

 DCC – Dormant Commerce doctrine: State law that discriminate against IC in favor of locals is
invalid (Cooley).
 Selective Exclusiveness: States can regulate IC if Congress have not regulated. If matter requires
National uniformity, power is exclusive of Congress (Cooley).
 If State law discriminate b/w in-state and out-of-state: Strict scrutiny = Compelling interest and
nondiscriminatory options. (Hughes)
 If State burdens IC: Pike Balancing test = Burden on IC > benefit of State (Heart of ATL)