Law School Discussion

Modern Commerce Clause question

Modern Commerce Clause question
« on: April 23, 2007, 11:49:03 AM »
Under Lopez, one of the three main categories of commerce that Congress can regulate is "persons, things, and instrumentalities" of interstate commerce... what exactly does that phrase include? If I walk across state lines, do I become a person of interstate commerce? Or would I have to work in interstate commerce?

Any examples would be great... Though it's perhaps a simple question, it's one of the only things still confusing me here at the end of con law :(

Re: Modern Commerce Clause question
« Reply #1 on: April 23, 2007, 01:16:13 PM »
truck drivers cannot work more than X hours per day

oscarsonthepond

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Re: Modern Commerce Clause question
« Reply #2 on: April 24, 2007, 10:58:49 PM »
At least in our class we hardly even talked about that prong - the focus was definitely on activities substantially affecting interstate commerce.  For instrumentalities, though, it's just like everything else in law school - you can make arguments on both sides.  I'm guessing the decision hasn't been hashed out enough to say conclusively what constitutes an instrumentality and what doesn't.  So on the one side you'd argue that the whole point of Lopez was to limit the ridiculous extent that the Wickard v. Filburn test was taken too and thus instrumentalities should be construed narrowly.  On the other hand, in Gonzalez you see the court going back to expanding the commerce power and thus could argue that in its current state the court would construe the prong broadly.  In any event, I'm guessing that Congress could definitely not regulate any activity of anyone who has ever crossed a state line.  I'm also guessing they certainly could regulate truck drivers who transport goods across state lines (the other example given).  In between those two there's a lot of gray area.

Re: Modern Commerce Clause question
« Reply #3 on: April 25, 2007, 09:16:45 AM »
If you walked across state lines that's not commerce. 

Re: Modern Commerce Clause question
« Reply #4 on: April 29, 2007, 07:43:07 AM »
If you walked across state lines that's not commerce. 
What if the walk across state line was for purposes of prostitution on each side of the state line?

Re: Modern Commerce Clause question
« Reply #5 on: April 29, 2007, 08:21:55 AM »
Then you have an argument

Re: Modern Commerce Clause question
« Reply #6 on: April 29, 2007, 08:54:47 AM »
Yeah, "substantially affecting" is a much better target for a law school exam because it lends itself so well to arguing both sides.  But as long as you cross state lines and engage in an activity that Congress has sought to regulate across states, then you are a person engaging in interstate commerce.  Prostitution, soliciting gambling, things like that.