Rock Out Commerce Power (3)

Rock On

Drummer

Girl Band B&W

RockinDJ

This is an example of Congress sometimes going too far with its regulations. Since commerce power is heavily emphasized both in class and on constitutional law exams here’s a big picture path to understanding the third prong of a commerce clause analysis; non - commercial intrastate activity.

Example

State Red citizens and local government are primarily conservative and prefer that

their children practice abstinence. Recently Congressional members from blue states have been pursuing sex-education reform. They pledge to address the math and reading crisis next term. After impassioned debate, Congress passed a bill requiring public and private schools in every state to include safe sex instruction in their physical education curriculum. Residents in state Red are outrage and challenge the constitutionality of the federal law.

Arguments

Let’s check out the arguments. Congress would argue that it has a rational basis to believe that regulating sex education in schools substantially effects interstate commerce. They would point to things like the economic impact of teen pregnancy on the national economy or poverty and high-school drop out rates among teen parents.

State Red would counter argue that the causal chain between safe sex education and its potential impact on the national economy is not strong enough too big of leap to qualify as a substantial effect on interstate commerce. The crux of this argument is that these sort of slipper slope rationales for federal laws lend Congress too much room to validate nearly any law they can dream up. Justices like Scalia and Thomas make this argument because they value states’ rights over big government and fear that congress might abuse its super weapon -the commerce power- if there are not limitations when an activity like sex or carrying guns isn’t clearly commercial. Hence, Non-Commercial Intrastate Activity.

Anti-Commandeering Principle

Another counterargument that State Red will make is that the federal government has no business telling state red residents how to talk to their children about the nasty. 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.

Here’s a nuance you must keep in mind. Remember that the congressional law attempts to regulate sex education in both public and private schools. Congress can clearly commandeer a public school because they rely on federal funding. However, since private schools are not funded by the federal government they have a stronger position to raise the anti-commandeering principle.

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 non-economic intrastate activities. Now that you’ve got the big picture, read your cases, listen in lecture and get practice analyzing interstate commerce power with practice problems.