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)