Impressive Interstate Commerce Analysis

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In law school it’s hard to see the forest for the trees. Since commerce power is heavily emphasized both in class and on constitutional law exams here’s a big picture path to understanding commercial interstate activity.

Big Picture

The Commerce Power is one of Congress’ tools to regulate states and individuals. When Congress wants to tell a state or an individual what they can or cannot it general supports its regulation using the Commerce Clause. Neither states or individuals usually like being regulated so they challenge the constitutionality of Congressional laws.

Interstate vs. Intrastate

The key to understanding commerce power is to know the difference between Interstate activity versus intrastate activity. Interstate and Intrastate sound similar but interstate means two or more states and intrastate means only one state. Let’s begin with an Interstate Activity example.

Example: Interstate Activity

Imagine that Kanye Kardashian airway has a sweet exclusive licensing deal with State Blue. In the state deal, only Kanye Airway can operate out of State Blue’s terminals that fly in and out of State Red. However, under federal aviation law Kanye’s rival competitor, Tailor Swift Airlines, is licensed to fly in all 50 states.

The Issue

The issue is whether Taylor Swift can successfully argue that State Blue’s deal with Kanye is unconstitutional?

The Arguments

Let’s check out the arguments on both sides. Swift will argue that since Congress passed a law allowing her to fly in all 50 states then Kanye’s deal is void. But not so fast! Just because Congress passed the law doesn’t mean it’s constitutional. What we have to do is take the elements of the commerce power and analyze them under the facts.

The commerce power says that so long as there are instruments traveling along channels between two or more states then Congress has the authority to make laws regulating that activity. The instruments are the airplanes or the passengers. The channel is the airway, the sky, the heavens. And of course, since the flights take place between the two states of Blue and the Red then each of the elements of “interstate activity” is met.

Counter Argument

Looking at the rule and the facts it looks like Congress has the power to regulate here. But Kanye has a counterargument using the 10th Amendment. Kanye can argue that Congress can’t just assert itself into State Blue and tell it what to do on its own turf. This argument is called the anti-commandeering principle and it means that the 10th Amendment protects against Congress commandeering, or taking over, a states local government in order to implement its own agenda. To overcome this argument Congress usually attaches money and funding to a program so that if a state wants the money they will also have to enact the federal program locally.

Depending on the level of federal funding the airport receives, State Blue may not have strong position from which to raise the anti-commandeering principle.

So that’s both sides of the coin when you analyze interstate commerce regulations. Now that you’ve got the big picture, read your cases, listen in lecture and get practice analyzing interstate commerce power with practice problems.