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Three Broad Categories of Activity

That Congress May Regulate Under Its Commerce Power



1.
Congress may
regulate the use of
channels of interstate
commerce.
(Darby)
2.
Congress can regulate
the instrumentalities of
interstate commerce.
(Railroad cases)
3.
Congress can regulate those
activities that substantially
affect interstate commerce.
(Wickard, Katzenbach, o!ez)
Wickard" Katzenbach"Raich #R$%&'($ )$*&*+ test,
-. (o distinction bet.een !roduction"trade/
direct"indirect effect
0. $ggregate effects of many individuals
1. Congress need only have a rational basis for
concluding that regulated activity substantially affects
interstate commerce.
2. Congress can regulate !urely intrastate activity that
is not itself 3commercial3, if it concludes that such
regulation is essential to a com!rehensive regulation
of interstate commerce
o!ez"4orrison"*ebelius #5C'('4&C " ('(65C'('4&C+ test,
-. 7irst determine if the nature of the activity is economic or non6
economic.
&f it &* economic, use the R$%&'($ )$*&* test.
&f it is ('% economic, generally can8t aggregate effect 9 need
much more than a rational basis for the la..
0. &f non6economic, see if there is a :;R&*<R;D5(%&$ (5=;*>
a s!ecific link bet.een intrastate activity 9 interstate commerce.
%he Court has not resolved ho. strong the ne?us has to be.
1. 5ven if Congress is regulating in the economic realm, it can only
regulate activity, and not inaction 6 in other .ords it cannot
com!el !eo!le .ho are not currently engaged in any commercial
activity to engage in economic activity. (*ebelius activity"inactivity
test)

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