Best Approach 2 Commerce Power

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 intrastate activity.

Example: Commercial Intrastate Activity

State Blue passed a marijuana law that authorized residential growing for homeowners within the state. However, the federal government and neighboring State Red still outlaw marijuana and State Red has noticed an increase in crime associated with state Blues new liberal laws. The issue is whether State Red can successfully challenge State Blue’s law as unconstitutional because it violates Congress’ federal law banning weed.

Arguments

Let’s check out the arguments. State Blue will argue that Congress has no business regulating their weed because state Blue is minding their own business and if its citizens want to blaze up then leave the alone. In other words, their argument is that the State Blue law regulating residential marijuana growing does not involve instruments traveling along channels and into other states so it’s not an interstate activity that Congress can regulate. Without an interstate activity the federal law doesn’t have an enumerated power like the commerce clause to latch on to.

However, State Red has some counterpunches up its sleeve. You see, State Red would argue that although the activity of residential growing is intrastate it still effects their state. Remember, crime related to marijuana growing has increased in State Red because of State Blue’s new law.

Using what’s called the Substantial Effects Test , State Red or Congress would argue that although the activity seems limited to State Blue alone there is still a rational basis to believe that legalized marijuana growing in State Blue substantially impacts interstate commerce in State Red. They would support this argument by discussing the impact that crime has on their local economy, increase cost of law enforcement and the cost bore by local businesses an residents.

What the Substantial Effects test boils down to is that even if State Blue’s law is intrastate, or isolated to their state, if it has an important enough commercial impact on other states then Congress can use the Commerce power to regulate State Blue’s in state or intrastate activity.

Summary

Congress has a super weapon called the Commerce Power. Congress can use the commerce power as a rationale for making federal laws that states or individuals have to follow. But there are some limitations; like, there must be two or more states involved. And if there is only one state involved then there needs to be a pretty good argument that the single state’s activity impacts at least one other state. Also the activity needs to have an economic impact. Hence the word commerce which relates to words like commercial, business and money.

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