“The Congress shall have Power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”
The Commerce Clause Power has been amplified by the Necessary and Proper Clause which states this Commerce Clause power, and all of the other enumerated powers, may be implemented by the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The Necessary and Proper Clause is the final clause of Article I, section 8.
This clause emerged as a response to the existence of individual state legislation which was discriminatory toward other states in our union.
The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated in Gibbons (1824).
The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision.
When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. Intrastate activities could fall within the scope of the Commerce Clause, if those activities would have any rational effect on Interstate Commerce.
The court established precedence “if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'”
A Rehnquist court opinion pointed out that prior decisions had identified three broad categories of activity 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's 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).
The court held Congress may regulate a non-economic good, which is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce.
The evolving level of scrutiny applied by Federal courts to Commerce Clause cases should be considered in the context of rational basis review. The idea behind rational basis review is that the judiciary must show deference to the elected representatives of the people.
A respect for the democratic process requires that the Courts uphold legislation if there are rational facts and reasons that could support Congressional judgment, even if the Justices would come to different conclusions. Throughout the 20th century, in a variety of contexts, courts sought to avoid second guessing the legislative branch, and Commerce Clause jurisprudence can be seen as a part of this trend. Lawrence Tribe states:
Rational basis review begins with establishing the factual predicate upon which the exercise of Congressional power is based. This factual basis might come from a variety of sources.
It might come from factual determinations made by Congress, passed in the legislation itself, or found in the Congressional Reports issued to accompany the legislation. It might come from the record of testimony complied in Committee Hearings. It might come from facts posited by proponents in their briefs in support of the legislation.
The Court wrote:
"Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end."
Courts have said:
"In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding."
Since its decision in Gibbons, the Supreme Court has recognized that judicial limitations on Congressional exercise of its Commerce Clause powers represent an invasion of the democratic process.
Of course, in some sense, by its very nature, the Constitution represents a constraint on the democratic process, because the Constitution represents a set of rules which may not be overturned through ordinary democratic means.
Nevertheless, the Court regularly points out that the primary limitation on unwise exercise of Congressional Commerce Clause must be found at the ballot box.
Thanks to Wikipedia for reference material: found here!
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