Midterm Outline.docx - I II Interpreting the Constitution...

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I. Interpreting the Constitution and Judicial Review II. Powers of Congress 1. Commerce Clause i. Commerce has Plenary Power to regulate the channels of interstate commerce Gibbons v. Ogden – broad view of commerce clause. Navigation is always commerce In support of that analogy, one could note that Gibbons holding that interstate commerce includes a service like navigation, suggesting that transactions in services should be treated the same as transactions in goods. ii. Commerce has Plenary Power to regulate the instrumentalities and thing and people moving in interstate commerce Heart v. Atlanta – A motel that serves interstate travelers may be barred from engaging in racial discrimination, because such discrimination may deter persons from traveling, thus having an effect in other states. iii. Commerce has the Power to regulate ACTIVITY (not inactivity) that substantially affects interstate commerce (1) Is the Activity Economic? o Economic Activity includes production, distribution and consumption of commodities. o Economic activity may be aggregated Gonzales v. Raich – held that Congress had the power to criminalize private cultivation, possession, and use of state approved medical marijuana as a part of its larger regulation of the drug trade. Because the conduct at issue involved neither the channels nor the instrumentalities of interstate commerce, the question whether congress could sweep non- economic activity – individual cultivation, possession, and use of medical marijuana – within the scope of its regulation of a larger economic activity – the interstate market for drugs. ECONOMIC ACTIVITY Wickard v. Filburn – Wickard involved a federal agricultural price control law that prohibited a farmer from cultivating wheat beyond the farmer’s allotted quota, even if the excess was used solely for the farmer’s own consumption. The Filburn Court upheld application of the law to a farmer’s personal consumption, holding that Congress may consider the aggregate effect of all who might engage in the regulated behavior. The analogy b/n Wickard and Raich is straight forward. Though a single individual cultivating and using medical marijuana will not have much (if any) effect on the interstate drug trade, such behavior aggregated cross the entire nation could have a substantial effect. Thus, in both Wickard and Raich the regulation is within Congress’ commerce power b/c production of the commodity meant for home consumption , be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. ECONOMIC ACTIVITY United States v. Lopez – The statute forbade gun possession simpliciter, and not as part of a larger regulation of schools or gun trafficking. NON-ECONOMIC ACTIVITY United States v. Morrison – The statute imposed liability for gender motivated violence, and did not undertake a larger regulation of working conditions or the like. NON- ECONOMIC ACTIVITY
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  • Fall '08
  • HERALD
  • United States Congress

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