Commerce Clause: Basis for congresses modern and constitutional authority.

Most legislation based upon commerce clause civil rights, civil liberties, social security, labor rights, any form of welfare all premised on commerce powers ALL NEW DEAL policies Medicare/Medicaid If individual mandate is repealed or rejected by SCOTUS, the rest of the law goes as well. Constitution attempt to undo the Articles of Confederation What is the constitution? o Formalism/Objective Meaing: Static or Dead constitution traditional legal document (born in 1787) Original intent social compact Original Understanding textualism looking at the meaning of the words at that time. 8th amendment ANY felony committed=put to death (Breyer arguing to Scalia) o Political Sociological Jurisprudence/Subjective meaning: Living constitution (reborn as needed) reinterpreted as needed temporary ratification amended as needed Evolving Constitution Contemporary ratification Needs or desires of current government and individuals pragmatic realism Moral, ethical, and political changes= constitutional change reformer or constitution as tool for policy advancement Any ever changing document cannot be a constitution because it stands for what it stands for at that point in time (Scalia to Breyer) A moment of introspection o Two fundament questions Is the law wise do you agree? Politically expedient Good Policy Is the law constitutional? Is may be a great law, but unconstitutional may be horrific law, but constitutional. 11 year olds used to be allowed to work in factories. Healthcare may be required to live, but not constitutionally. Consistent with enumerated, implied, inherent or amendment powers o Does it violate the civil rights and liberties of the citizens Why do these questions matter and are they truly separate?

Stakes: Meaning or not? o Fundamental question: Does the constitution have meaning or is it fundamental law or not? If yes, then is designed to limit actions of government to a fixed set of powers and gives people a stable system of rights and liberties If no, then the constitution is a more or less empty vessel that may limit choices at the margins but provides ample opportunity for alteration with times and interpreters. The commerce clause: article 1: section 8, clause 3 o To regulate commerce with foreign nations and among the several states, and with the indian tribes Meanings and definitions Regulate Commerce Among Without defining these words clause means nothing and everything o Commerce: Business between at least two parties where goods and services are transferred. Attempts to define: problems from the beginning o Gibbons v. Ogden (1824) Trade and traffic of goods, but something more, intercourse commercial interaction o Lopez v. ? Crime as economic force businesses deterred from starting in high crime areas. Defining inter and intra state commerce: direct and indirect affects o EC Knight Co 1895 is monopoly over 98% of the refinement of sugar in country interstate commerce cannot stop production o ALA Schechter poultry is wholesale distribution within a state of out of state goods interstate congress can limit state importation of goods, but not after they have arrived o Carter Coal 1936 is mining coal commerce? o Jones and Laughlin Steel 1937 substantial effects and relation test anything that effects commerce becomes commerce NLRB, Social security Aggregate effects o Wickard v. filburn (1942) Grew extra corn for personal consumption this is commerce Todays interpretation o Congress may regulate the use of channels of interstate commerce (unanimous) o Congress may regulate the persons or things engage in interstate commerce (unanimous)

o Congress may regulate those activities that have a substantial relationship to or substiantially affect interstate commerce (defining substantial) Congres power extends to state activities that are covered under commerce clause (5-4) Commerce may not include non-commercial activity (5-4) Is the regulation of healthcare covered under the commerce clause? Who has standing to sue and when or is the subject justiciable? o States? o Individuals o Does it have to be in effect or implemented Is a mandate to buy health care insurance a constitutional regulation under the commerce clause Can you force someone to take an action and then regulate that action? Majority will v. Minority rights o Mob rule v. rights guaranteed to us