Commerce Clause Tests

Liberal Test:

Legislation is proper under the Commerce Clause if, aggregating all the effects of the legislation, the regulation has a substantial effect on interstate commerce. (Wickard v. Fullburn; Heart of Atlanta Motel)

Developed (added) rule in Gonzales v. Raich:

  • It is irrelevant if the regulated activity is (1) purely local, or (2) not regarded as commerce.
  • If failure to regulate the activity would undercut the regulation of the interstate market in the commodity, the congress can do so

Conservative Test

It is established in Lopez and Morrison.  The Congress can regulate:

  • Channels of interstate commerce
  • Instrumentalities of interstate commerce, or persons or things of interstate commerce
  • actvitivies that substantially affect the interstate commerce

Test for finding “Substantial effect” to the interstate commerce:

(1) Economic activity: is there a direct link between the activity and the interstate commerce? The connection to economic activity cannot be too attenuated (Lopez)

(2) Jurisdictional element: is there a jurisdictional limitation (judicial hook) limiting the (challenged congress regulation) from reaching to activities in interstate commerce

(3) Congressional findings: whether the congress has findings of a substantial effect to the interstate commerce (however, in Morrison, the congressional findings in supporting its regulation has been limited — the final call should be subject to the Court)

(4) Provnice of the states: whether the statute affects areas traditionally left to the states.

The Economic Inactivity Rule

Per NFIB v. Sebelius, Congress can not regulate economic inactivity.

Ginsberg (in her dissent) argued that there are substantial effect from the mandatory insurance to the interstate commerce (they are not annuated).  Ginsberg also argued that even the economic inactivity rule applies, there Congress is not regulating inactivity in this case, as everyone will eventually participate in the health care market.


Tests for cases involving Equal Protection and Due Process Clauses

Equal Protection:

Principle: State shall not deny to any person within its jurisdiction the equal protection of the laws.

Two Step Assessment:

Step One: Suspect Classification, quasi-suspect classification or others?

Suspect Classification:  Race, religion, nation of origin –> Strict scrutiny

– immutable characteristics

– a discrete and insular minority

– historic discrimination

Quasi-suspect classification: gender –> intermediate scrutiny

Others: rational basis

Step Two: Levels of Scrutiny. 

(a) Strict scrutiny: applied to “compelling state interest”

  • the law is necessary to achieve a compelling purpose; no alternative solution
  • the law must be narrowly tailored

(b) Intermediate scrutiny: applied to “important state interest”

  • the law “substantially related” to the state interest

(c) rational basis: applied to “legitimate state interest”

  • reasonably or rationally related to the state interest
  • reasonable means to achieve the puproses

Due Process Clause

1. Substantial due process: Whether the government has an adequate reason for taking away a person’s life, liberty, or property.

2. Procedural due process: how the government enforces law must be fair. When the state or federal government acts in such a way that denies a citizen of a “life, liberty, or property” interest, the person must first be given notice and the opportunity to be heard

3. Two Step Analysis

Step One: whether the affected is a fundamental right?

Step Two: If yes, strict scrutiny; if not, rational basis.

Finding fundamental rights: in the constitution, about the liberty, autonomy or in the zone of privacy.

Test for finding fundamental rights:

Conservative approach:

  • implicit in the concept of the ordered liberty
  • deeply rooted in this Nation’s history and tradition

List of the recognized fundamenal rights (in addition to those explicitly numerated in the Bill of Rights):

  • right to marry and procreatn (Loving v. Virginia)
  • purchase and use birth control (Grisworld v. Connecticut)
  • custody of one’s own children and raise it as one sees fit (Palmore v. Sidoti)

Liberal approach: right to privacy – things fall into it (zone of penumbra) :

(1) things that are truly private to individual to decide (“Decisional Privacy”); or
(2) things happened in the geographically private places.

4. Strict Scrutiny in the context of due process — same to those in the Equal Protection analysis

美国同性婚姻合法化进程 Case Laws Related to Same-sex Marriage in the United States

Nine cases paved the way legitimizing the same-sex marriage under the federal law of the United States.

Constitution Basis – Due Process and Equal Protection Clause

Amendment V

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Amendment XIV

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

1、Loving vs. Virginia, 388 U.S. 1 (1967)

Facts: An African American woman married a Caucasian man. They were indicted for violating the Virginia law which banned interracial marriages. The couple filed lawsuit against the State of Virginia on the grounds of the Equal Protection and Due Process Cluases.

Issue: Whether a state law criminalizing interracial marriages is constitutional.

Supreme Court Holding: A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Key Takeways: 
(1) Virginia’s statute is motivated solely to restrict marriage based on race, and by precedent, such laws have been found to be a threat to equality.
(2) Race-based classifications are subject to strict scrutiny (or “most rigid scrutiny”).
(3) there is no legitimate overriding purpose independent of invidious racial discrimination that justifies Virginia’s classification.

2. Palmore v. Sidoti, 466 U.S. 429 (1984)

Facts: Father of a three-year-old girl sought sole custody of his daughter because his ex-wife cohabitated with an African American. The Florida court awarded custody to the father on the grounds that the mother had chosen a socially-unacceptable lifestyle by marrying an African American man.

Issue: Whether the removal of custody of her child from a woman on the grounds that she entered into an interracial relationship violated the Equal Protection Clause of the Fourteenth Amendment.

Holding: Yes.  The deprivation of custody of an infant child from her mother solely because of the risk of racial biases violates the Equal Protection Clause of the Fourteenth Amendment.

Key Takeways:
(1) The existence of the biases (to a girl for living in a interracial household) is not enough, by itself, to justify removing the infant child from her mother’s custody.
(2) Permitting removal of mother’s custody would give these biases effect.

3. Grisworld v. Connecticut, 381 U.S. 479 (1965)

Facts: Executive officer (Grisworld) and a doctor of a planned parenthood center was convicted, as a Connecticut statute prevented using contraception or assisting usage of it.

Issue: Does the Bill of Rights contain an implied right of privacy that permits the use of contraceptives by married persons?

Holding: Yes, an implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception.

Key Takeawys:  

(1) “Penumbras”: The Third Amendment prohibits the quartering of soldiers in a person’s house without their consent. The Fourth Amendment protects against unreasonable searches and seizures. The Fifth Amendment protects against self-incrimination. The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The protected activities in each of these Amendments are “penumbras” and represent a “zone of privacy” into which the government cannot intrude.

(2) The marital relationship is located within this “zone of privacy”, which was violated by the Connecticut law (which seeked to prohibit the use of contraceptives).

(3) The right of privacy in marriage is a concept older than the Bill of Rights that should necessarily be kept sacred and free from intrusion by the state.

(4) what consists of “fundamental rights”? (in Concurring opinions)
– They must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] . . . as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105.
– The Court stated many years ago that the Due Process Clause protects those liberties that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” . . . . In Gitlow v. New York, 268 U.S. 652, 666

4. Bowers v. Hardwick, 478 U.S. 186 (1986)

Facts: A Georgia statute criminalized sodomy. An adult male (Hardwick) was charged violating the statute in hardwick’s home.

Issue: Does the Constitution provide a fundamental right to engage in homosexual sodomy?

Holding: No. The Constitution does not provide a fundamental right to enage in homesexual sodomhy.  Only when an activity is “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition”, it would be considered fundamentally constitutional deserving of heightened protection.

Key Takeaways: 

(1) Tests for finding fundamental right: (a) whether a right is “implicit in the concept of ordered liberty”, and (b) whether a right is “deeply rooted in the history and tradition”.

(2) If it is not a fundamental right, then use test of rational basis: a law is rational if the purposes of the law themselves are rational AND the law is a reasonable means to accomplish those purposes.

(3) If there is fundamental right, then heightened/strict scrutitny: the state must show that it has a compelling state interest, not merely a rational state interest. It must also show that the law is a necessary means to accomplish that purpose, not merely a reasonable means.

(4) the law at issue passes rational basis scrutiny (not the heightened scrutity), because it is based on notions of morality.

(5) test for finding right to privacy: (i) interest of making certain decisions that are properly for an individual to make; (2) privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged.

Justice Powell’s Concurring: the Georgia anti-sodomy law (up to 20 years imprisonment) may be vulnerable based on the Eighth Amendment’s prohibition of cruel and unusual punishment.

Justice Blackmun’s Dissent: the issue of this case should be whether consensual sexual activities in home can be intruded by government.  The case is about the right to be let alone. “Sexual intimacy is a vital component to human existence.” Therefore, it should be accorded the privacy protection the Court has recognized in other Due Process cases.

Justice Stevens Dissent: Homosexuals have the same interest as heterosexuals in choosing their voluntary, private associations with others, and no neutral and legitimate state interest has been offered in support of selective application to homosexuals.

5. Romer v. Evans, 517 U.S. 620 (1996)


Facts: Caolorado voters passed an Amendment 2, which prohibited all governmental intervention designed to protect the status of persons based on their sexual orientation, conduct, practies, or relathinships. This Amendment 2 was challenged in this case.

Issue: Does a law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violate the Equal Protection Clause of the Fourteenth Amendment?

Holding: Yes. A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment.

Key Takeaways: 

(1) When to exclude the Equal Protection Clause: If a law neither burdens a fundamental right nor targets a suspect class, the law will be constitutional so long as it is rationally related to a legitimate state purpose.

(2) Two steps test to consider if a state law passes the Equal Protection Clause: First step: whether the group that has been identified by the law is a “suspected class”.  Second, then apply “strict scrutiny” or “rational basis” based on the answer of the first step.

(a) If the affected class is a “suspected class”, i.e. about race, nationality origin, religion (suspected classes)? If yes, then strict scrutiny.

(b) How to find suspected class?

– The class has “immuntable characterastics”: something that can hardly be hidden.

– The classs is “a discrete and insular minority”: discrete means separate from others; insular means stay to themselves.

– there is historical discrimination against the class.

(c) If the affected class is not subject to the “suspected classes”, then rational basis. The “rational basis”  for Equal Protection Clause: reasonable purposes and reasonable means to accomplish the purposes.

(d) Terms used in discussion of “Due Process Clause”: fundamental rights, liberty.

(f) Terms used in discussion of “Equal Protection Clause”: equality, suspected classification.

Justice Scalia’s dissent: Amendment 2 is not a targeted attack on the rights of homosexuals, but rather an attempt by voters to preserve traditional and long-held sexual mores. The majority attempts to overturn its prior decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and puts the Court’s weight behind the idea that opposing homosexuality is as offensive as exhibiting racial or religious bias. The Equal Protection Clause, which has previously been used to uphold the civil rights of racial and religious groups, should not be used in the present case to uphold the rights of homosexuals as a class. The majority actually declines to consider the issue of whether Amendment 2 bears a rational relation to a legitimate state purpose, because the majority is focused on asserting its view that discrimination against homosexuals is evil. This holding is unsupported by precedent and misguided in its conclusions.


6. Lawrence vs. Texas, 539 U.S. 558 (2003)


Facts: In a raid action (for checking weapon disturbance), Police observed that Lawrence and Tyron Garner was engaging in sexual act. They are charged same sex sexual intercourse according to the Texas law. They challenged the law.

Issue: Does the Due Process Clause of the Fourteenth Amendment include a right to liberty in individual decisions concerning the intimacies of their physical relationship?

Holding: Yes. The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship.

Court’s reasoning: The Court cited Grisworld v. Connecticut that a law prohibiting use of contraception had been found unconstitutional.  Then the Court discussed Bowers v. Hardwick, which upheld a law that generally prohibited the consenual acvitity of sodomy (either between gays or between straights).   The Court found that Bowers decision mistakenly framed the issue to be whether certain particular activity is protected.  The correct identification of the issue should be: whether a liberty to decide the intimate activities in private places is a fundamental right. The decision’s reliance on historical data and practices was also misplaced. Much of the information relied on by the court in Bowers has been called into question. Additionally, since the decision was issued, there has been an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. For example, the European Court of Human Rights held that laws prohibiting consensual same-sex conduct were invalid under the European Convention on Human Rights. The fact that the governing majority in a state has traditionally viewed a particular practice is immoral is not a sufficient reason for upholding a law prohibiting the practice. The private, consensual activity at issue in this case is within the realm of personal liberty which the government may not enter. Therefore Bowers is overuled.

Justice O’Connor’s Concurrence: The Bowers shall not be overuled, but in this case, the Texas law is unconstitutional because it violates the Equal Protection Clause.

Justice Scalia’s Dissent: The Bowers decision held that the right to engage in same-sex sodomy was not a fundamental right.  The majority does not provide sufficient basis for departing from stare decisis.  Even if social perceptions of sexual and other morality are changing, the appropriate method of changing the laws to reflect this would be in the legislature, not the creation of a new constitutional right by this court.


7. Perry v. Schwarzenegger (Hollingsworth v. Perry), 704 F. Supp. 2d 921 (N.D. Cal. 2010)


Facts: Proposition 8 of California law restricted the marriage to be between a man and a woman. Two same-sex couples were denied marriage licenses unde this law. They brought suit on the grounds that the law deprived their due process and equal protecgtion of the laws.  The proponents of Proposition 8 intervened to argue that the law advanced the state interests of: (1) preserving the tradition of marriage as between a man and a woman, (2) implementing social change slowly and incrementally, (3) promoting opposite-sex parenting in the best interests of children, (4) protecting the First Amendment rights, and (5) treating same-sex marriage differently from opposite -sex marriage.

Issue: Does a state law prohibiting the recognition of same-sex marriage violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment?

Holding: Yes, a state law prohibiting the reconition of same-sex marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Reasoning: The plaintiffs are not seeking for new rights but the fundamental right of marriage. Because marriage is a fundamental right, the strict scrutiny is appropriate for review of Proposition 8 under the Due Process Clause.  Similarly, strict scrutiny is also appropriate under Equal Protection Clause for review of a classification based on sex orientation.  Sex-orientation discrimination is different from the sex discrimination but related in that the Proposition 8 targets same-sex couples specifically due to sex. While the strict scrutiny is appropriate in this case, the targeted statute even cannot survive rational basis review: (1) tradition alone does not make a law rational, as the traditional role of marraige has disappear; (2) same-sex marriage does not have a negative effect on society or the institution of marriage; (3) no evidence that opposite-sex parenting is better for children than same-sex parenting; (4) evidence shows that the law does not affect the rights of individuals opposed to same-sex marriage; and (5) the intervinor’s premise that the same-sex marriage differs from opposit-sex marriage is fundamentally flawed. They are the same thing: marriage.  Therefore, Proposition 8 advances no legitimate government interests and fails rational basis review. Enforcement of Proposition 8 is permanently enjoined.

8. United States v. Windsor, 570 U.S. 744 (2013)


Facts: Windsor married a same sex person. The person died and left asset to Winsor.  Windsor claimed tax wavier but was refused by the federal government because a Defense of Marriage Act (“DOMA”) defines marrige to be between one man and one woman.  Windsor then sued. Obama directed that the federal government does not defend the case before the case.  However, the officials should continue enforcing the law until the case is ruled by the court.

Issue (same-sex related): Whether the federal statute’s exclusion of same-sex couples from the definition of marriage violates the Due Process Clause.

Holding: Yes, the provision in DOMA defining marriage as excluding same-sex couples is a deprivation of liberty guaranteed by the Fifth Amendment’s Due Process Clause.

– Though Congress may enact laws that impact marriage, regulation of marriage is within states’ exclusive power over domestic relations, subject to constitutional limits.

– The moral and sexual choices of homosexuals are protected by the Constitution. DOMA degrades those couples and harms their children.

Justice Scalia Dissent: The majority paints the Court as the ultimate arbiter of constitutionality above the democratically elected branches, but the Framers intended to create co-equal branches. … There are legitimate justifications for DOMA. DOMA settled choice-of-law questions and preserved federal benefits for opposite-sex married couples as they were when enacted.

Justice Alito Dissent: Same-sex marriage is an issue of public policy; the Constitution is silent. Substantive due process protects “fundamental rights . . . deeply rooted in this Nation’s history.” Same-sex marriage has no historical roots…. Windsor argues that DOMA violates equal protection, classifications based on sexual orientation should be subject to heightened scrutiny, and DOMA cannot survive that scrutiny. However, the scrutiny structure for equal-protection claims is not well suited for marriage laws. … DOMA does not impede states’ ability to define marriage; it only clarifies the category of people entitled to the benefits under federal law.

Justice Roberts: The federal government acted to preserve the fundamental definition of marriage, which was the traditional understanding throughout history and in the rest of the world. The majority goes too far in deciding that Congress’s only motive was “a bare desire to harm.” It is important to note that this decision does not impact states’ ability to maintain the traditional definition of marriage.

9. Obergefell v. Hodges, 576 U.S. _(2015)

Facts: Three same-sex couples tried to obtain certificate of marriage from a state where their marriage was not made.  The 6th Circuit consolidated the cases and reversed, holding that states were under no constitutional duty to license or recognize same-sex marriage.

Issue: Must states issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples?

Holding: Yes. Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Reasoning: Marriage is a fundamental right protected by the Due Process Clause (e.g. Loving v. Virginia, where anti-miscegenation laws were struck down). Four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) the right to choose whether and whom to marry is “inherent in the concept of individual autonomy”; (2) the right serves relationships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and (4) lastly, marriage is the very “keystone of our social order” and foundation of the family unit. Similarly, while same-sex relationships were once forbidden, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that same-sex couples had an equal right to intimate associations. Refusing to allow same-sex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc. In this instance, the liberty interest protected by due process intersects with the right to equal protection, and same-sex marriage bans violate both. Therefore, states must issue marriage licenses to same-sex couples. Further, states must recognize lawful out-of-state marriages between same-sex couples. All contrary laws are struck down. The court of appeals is reversed.

Justice Scalia Dissent: An unelected committee of nine lawyers has stopped the debate and the democratic process on this issue.

Chief Justice Roberts Dissent: 

  • this should be left to individual states to decide
  • The Court has usurped the right of the people to make such a decision through the democratic process
  • the Court fails to conduct the traditional Equal Protection Clause analysis.


A Note on the “Evolved Substantial Effect” Test in Finding Constitutionality Under the Commerce Clause & Thoughts on a Better Approach Applicable to the Existing Regime

***** Draft – expect to be updated frequently ******

On their surfaces, the U.S. Supreme Court (“Court”) has developed two concurring/parallel sets of rules in determining whether a regulation made by the Congress should be found constitutional on the basis of the Commerce Clause.  However, as a mater of status quo, the two sets of rules are legally co-existing, and it seems the application of them would be highly subject to the case facts – namely, whether the regulation to be assessed is more similar to the cases under the “rational basis” test or is more comparable to the cases ruled under the “three categories rule” as well as its sub-rule of “substantial effects to the interstates commerce”.

This note will explain that the “two” sets of rules are not exclusive to each other. They are co-existing and became mutually admitted after the conclusion of Gonzales v. Raich, 545 U.S. 1 (2005).  For easier discussion, I would name it a rule of “evolved substantial effect”.  Having said that, due to its inductive nature (as opposed to a rule developed with a deductive logic), the tests set out in this evolved rule remain to be further improved and strengthened, or the debates on constitutionality of any new federal legislation could be heavily affected by the “invented facts” that are just for the purpose of judicial review, which could be prepared by both supporters and opponents of a congress regulation to advance their argument of analogy or distinction.

  1. The “rational basis” rules

The rational basis test was established in Wickard v. Filburn, 317 U.S. 111, and was reiterated by Justice Breyer in her dissenting opinion in United States v. Lopez, 514 U.S. 549 (1995).  Briefly, the court shall consider three factors in assessing if a local activity can be regulated by the Congress (underlines added):

1.1. the Congress’s power to “regulate Commerce . . . among the several States,” U. S. Const., Art. I, § 8, cl. 3, “encompasses the power to regulate local activities insofar as they significantly affect interstate commerce.”

1.2. “in determining whether a local activity will likely have a significant effect upon interstate commerce, a court must consider, not the effect of an individual act (a single instance of gun possession), but rather the cumulative effect of all similar instances…”

1.3. “Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce…The traditional words “rational basis” capture this leeway. . . Thus, the specific question before us, as the Court recognizes, is not whether the “regulated activity sufficiently affected interstate commerce,” but, rather, whether Congress could have had “a rational basis” for so concluding.

In Wickard, the term “substantial effect” or its synonyms are used by the Court in the following contexts (underlines added):

  • “In the Shreveport Rate Cases, 234 U.S. 342, the Court … found federal intervention constitutionally authorized because of matters having such a close and substantial relationto interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.”
  • “[E]ven if appellee’s activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effecton interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.””
  • “It can hardly be denied that a factor of such volume and variability as homeconsumed wheat would have a substantial influenceon price and market conditions.”
  • “The commerce power…extends to those activities intrastate which so affect interstate commerce” (citing United States v. Wrightwood Dairy Co., 315 U.S. 110, 119)
  • “This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effectin defeating and obstructing its purpose to stimulate trade therein at increased prices.”

In light of the above, it is fair to say that “substantial effect to the interstate commerce” had already been a test in assessing the constitutionality of Congress’s regulations before the Court’s holding in Lopez.

  1. the “three categories of activities” rule developed in Lopez

Lopez established a rule of “three categories of activities” that Congress may regulate under its commerce power: “First, Congress may regulate the use of the channels of interstate commerce. . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce . . ., i.e., those activities that substantially affect interstate commerce.” [citation to be added]

The above reiteration clearly stated that the “substantial effect” test existed prior to the Lopez.  What the Court did in Lopez was to further specify the factors to be considered in finding the substantial effect.  In other words, Lopez did not invent a “substantial effect” test for finding the constitutionality of a regulation but just specified what factors may lead to the finding of “substantial effect.” These factors are set out below:

  1. Factors/means in finding “substantial effects”

Prior to Lopez, the “aggregation doctrine”, a.k.a “the cumulative effect of all similar instances”, has been accepted by Wickard as a powerful means (in favor of Congress) in finding “substantial effects” to the interstate commerce.  Namely, the “aggregation doctrine” has not been a means to establish the “rational basis” in Wickard, but a way to establish the substantial effect or connection to the interstate commerce. Then because there was a substantial effect to the interstate commerce, the congress’s regulation was found being based on a rational basis.

Apart from the aggregation doctrine, Lopez and Morrison provided offered further elements be considered in determining the substantial effects.  They are:

(a) whether the regulated activity is an economic activity;

(b) has the congress’s regulation been supported with sufficient factual findings during the process of legislation;

(c) whether the regulation in question contains jurisdictional element; and

(d) whether the regulated activities are traditionally subject to the state’s power.

Moreover, for the above element (b) of “congress’s findings that can support the regulation”, the court shall consider whether the link between the regulated activity and the alleged substantial effect was attenuated (because of their remote connection). [Citation to be added]

  1. The approach of Gonzalez

In Gonzales, the Court held that the prohibition of homegrown and consumption of marijuana under the Controlled Substances Act (“CSA”) was constitutional and was within the Congress’s power under the Commerce Clause.  The Court based it holding on its finding that the case fact in Gonzalez is comparable to the homegrown of wheat in Wickard.  Namely, (1) the subject matters (homegrown wheat or marijuana) in the two cases are both economic activities; (2) the aggregation of homegrown marijuana (by Raich and others similarly situated) has a significant effect on Congress’s capability to eliminate the national illegal marijuana market. [Citation to be added] Furthermore, the Court noted that “we need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in factbut only whether a “rational basis” exists for so concluding. . .” (underlines added) [Citation to be added]

On its surface, it appears that Gonzales has “returned” to the earlier rules applied by the Court prior to Lopez.  However, the Gonzales has not abandoned or denied the rules established in Lopez and Morrison.  Instead, the Court employed a legal technique of distinction.  Namely, it distinguished the facts in Gonzalez from those in Lopez and Morrison: “[u]nlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic…Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.” This approach enabled the co-existence of the rules established by Lopez and the rules applied prior to Lopez.

  1. The evolved substantial effect rule

Leaving aside the first two categories of activities that are relatively clearer in finding Congress’s constitutionality in regulating interstate activities, this section summarizes the “evolved substantial effect” rule based on the above discussion.

First Step: the Congress is authorized to regulate intrastate activities that (1) has the economic nature, and (2) may substantially affect the interstate commerce.  If there is no economic nature, then there is no need to consider the next step analysis.

Second Step: in order to find the “substantial effect”, the following factors need to be considered: (1) the economic nature of the regulated activity, (2) the Congress’s findings in supporting its claim of substantial effect, including applying the aggregation approach (but the Court has a final call on evaluating whether the congress’s findings are sufficient [Citation to be added]), (3) the tradition of state/nation separation of powers, and (4) if the regulation in question contains a jurisdictional element.

This evolved rule appeared to be a balance of the power between federal government and state, but it is still logically fractional (from a deductive angle of view).  For example, the above factor (1) under the Second Step analysis duplicates to the factor (1) under the First Step analysis.  This “fraction” is indeed is understandable given the Court had provided its rules in different case contexts.

  1. An issue of power separation between Judiciary and Legislature?

A more controversial issue lies in who (between the Court and Congress) weighs heavier in determining the factor (2) under the above Second Step.

In Lopez, even Justice Souter, who believed that the Congress’s findings in supporting the regulation in question was sufficient, still refused to defer the dispositive power to Congress. In Justice Souter’s dissenting opinion, he did not deny the dispositive power of the Supreme Court.  Instead, he took a position that is on the one hand admitting the capability of congress but on the other hand appeared retaining the judiciary’s final power in deciding whether an activity “substantially affects” the interstate commerce: “The fact of such a substantial effect is not an issue for the courts in the first instance … but for the Congress… Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied.” [Citation]. Namely, although he disagreed with the majority in finding the rational basis, he retained the Court’s final power in assessing whether congress’s findings are factually reasonable to a conclusion of substantially affecting the interstate commerce.


In other words, this issue has exceeded the scope of discussions under the umbrella of federalism (in particular, the relationship between Federal Government and States) and has stepped into the regime on separation of power between the judiciary and the legislative branch of the Federal Government.

  1. The defects of analogy/distinction approach

The Court applied an approach of analogy/distinction in Gonzales (so did Justice O’Connor in her dissenting opinion; the only difference is that she believed that Gonzalez facts are comparable to those of Morrison). This approach relieved the Court from analyzing the issue of separation of power with a lawyering technique – arguing similarity/distinction between a new case and certain precedents.  However, for the Commerce Clause disputes, this approach may lead to uncertainty in future cases.  It is anticipable that in any controversial matter, both supporters of a congressional regulation and its opposers would have to focus their efforts in collecting evidence (in practice it could largely become invention of facts) to enable their cases more similar to certain precedents and/or more distinguishable from other precedents.  In extreme circumstances, the merit discussion on the substance of a regulation might have to give its way to the debate on the “appearance” of the regulation and heavily complicate a case.

This has somehow happened to the Obamacare disputes. [to elaborate further]

  1. Conclusion

It seems that Justice Scalia’s approach in his concurring opinion in Gonzales was clearer: Congress’s power to regulate activities having a “substantial effect” on interstate commerce is derived not only from the Commerce Clause, but primarily from the Necessary and Proper Clause, which allows Congress to do whatever it deems necessary to accomplish its regulatory objectives. [Citation]. In other words, leaving the power of data finding to Congress (and just assess if the Congress has ever based its legislation with rationale basis), and then place more focus on legal elements that is naturally more appropriate to be determined by court: i.e. the “economic activity”, the “jurisdictional element” and the tradition of power separation between Federal Government and State.

In conclusion, a better (and more logically self-satisfied) approach appear to be: (a) using “rational basis” rule to determine if Congress has found factual connection between an intrastate activity and interstate commerce, (b) using the rest three elements to assess if the regulation in question has restrained itself in merely solving interstate commerce-related matter.



Political Question Doctrine – Separation of Powers under US Constitution

Baker v. Carr

Six elements determine the political question.

  1. In the text of Constitution:  textually demonstratble constitutional commitment of the issue to a coordinate political department
  2. Not discoverable: a lack of judicially discoverable and manageable stgandards
  3. policy premised: the impossibility of deciding without and initial policy determination beyond the discretion of the court
  4. disrespect to other branches: the impossibility for a court to independently resolve the case “without expressing lack of respect” for a coordinate branch of the government
  5. Challenging Policy decision already made: An “unusual need for unquestioning adherence to a political decision already made”
  6. Embarrassment: The potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Three categories: 

(a) inter-branch homony: embarrasement and disrespect: 3, 4, 5, 6

(b) text in constitution: 1

(d) capabilty of court: lack of judcially discoverable and manageable standards: 2

Steel Seizure Case

  • Justice black’s majority opinion: explicitly granted in the constitution OR if the congress has authorized the power to president
  • Justice Jackson’s concurrence:
    • Determine if the congress and president is agree, disagree or the congress is silent
    • If in agreement, then president can exercise all inherent power plus power authorized by congress.
    • If disagree, then president can only exercise inherent power in part that do not overlap congress’s power
    • If congress is silent: president can exercise his inherent power + zone of twilight (overlap part that both congress and president have) – case by case

United States v. Curtiss-Wright 

Rule: President has power to criminalize sale of guns to Bolivia by executive order because it is in his inherent power of foreign affairs.


  • Unlike the domestic issues that are enumverated in the Constitution, the States have never possessed powers over foreign affairs.  Such power is directly authorized by people to the federal government.
  • The President is the sole organ of the federal government in the field of international relations. Marshall: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
  • while the president shall excercise his power within the parameters of Constitution, his power in international affairs is broad
  •  In order to effectively maintain international relations, congressional legislation concerning foreign affairs must accord the President a degree of discretion

Dames & Moore v. Regan

Rule: The President has authority to settle claims through executive orders where the settlement of claims is necessary for the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to the President’s action.