Application:

o (a) Congress CAN regulate:

Channels of commerce:
(i) Boats traveling between states (Gibbons)
Items in interstate commerce:
(ii) Lottery tickets in interstate commerce (Ames)
(iii) Eggs not having ingredient list in interstate commerce
(Hipolite Egg)
(iv) Women crossing state lines for immoral reasons (Hoke)
Susbtantial relation to interstate commerce:
(v) Unfair labor practices by large corporations transacting
business in multiple states (Jones & Laughlin)
(vi) Employment conditions of workers producing goods for
interstate commerce (Darby)
Aggregation:
o (vii) Homegrown wheat (Wickard)
o (viii) Homegrown marijuana (Raich)
o (ix) Motels and restaurants serving interstate customers
(Heart of Atlanta Motel, Katzenbach)
o (x) Business receiving supplies from other states
(Katzenbach)
o (xi) Loansharking (Perez)
Pre-New Deal:
Substantial economic effect test:
o (xii) RR lines within state, if part of same scheme as lines
between states (Shreveport)
Stream of commerce test:
o (xiii) Cattle in stream of commerce between states (Swift)
o (b) Congress CANNOT regulate:
Aggregation:
(i) Possession of guns in school zones (Lopez)
(ii) Violence against women (Morrison)
(iii) Codes of fair competition for local poultry producers
(Schecter Poultry)
(Overturned):
Direct effect test:
o (iv) Manufacturing of iron (EC Knight)
(v) Interstate shipment of goods made by child labor, where
purpose of law is to ban child labor (Hammer)
(vi) Compulsory pension plan for RR workers (RR Retirement
Board)
(vii) Hours and wages of coal producers (Carter)
Broader themes:

o (i) Rise and fall of separate spheres doctrine pre- and post-New Deal
o (ii) Importance of congressional factfinding when drafting legislation
o (iii) Adding jurisdictional nexus requirement applying law only to items in or
having moved through interstate commerce more likely to save statute
Step 2: Is the Law Limited by External Limits on Congresss Commerce Clause Powers?
10TH AMEND.: The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.
Rules (Federal regulation of states and state activities):
o (1) Congress CANNOT regulate states in a way that would infringe on states
public function in a sovereign capacity (NOTE: Rule is in flux)
(a) Congress CANNOT interfere with core functions of state sovereignty
(Coyle)
Coyle: Congress cannot compel Okla. to make certain city its state
capital as a condition of entry into the union, because selection of
capital a core function of state sovereignty
Federal regulation of gubernatorial terms, retirement age of state
SC justic also probably invalid
(b) Congress CAN regulate traditional state activities so long as regulation
extends similarly to private actors (New York v. US)
New York: Congress can regulate NYs sale of bottle water from
state-owned springs, because spring water also bottled by private
parties
(c) Congress CAN regulate state functionsincluding traditional state
functionsso long as no large procedural defect in states participation in
the national political process (Garcia)
Garcia: State sovereignty protected through state participation/
representation in national political process, so no need for judicial
intervention absent extraordinary defect in procedural safeguards
for states in national political process
o Holding: Congress can regulate wages and hours of
municipal transit authority employees under Fair Labor
Standards Act)
o Its unworkable for courts to decide what are and are not
traditional state functions (sewage? transportation?);
would merely become exercise of naked judicial preference
for particular state policies (overrules National League of
Cities)
o Rests on idea that states are effective lobbyists in Congress
Field not sure this is correct
o Dissent: Congress cannot be the sole decider of the limits
of the Commerce Clause; the structure of the Constitution
requires the judiciary actively to maintain areas for
independent state action (laboratories of democracy)

Wirtz: Congress can regulate wages and hours of state hospital

workers under FLSA
National League of Cities (overruled by Garcia): Congress cannot
regulate state employees (through wage and hour requirements),
because a states control of its own employees is an inherent part of
its sovereign functions
o Rule: Congress cannot regulate integral operations of
traditional state functions, because otherwise would
destroy states separate sovereign existence (could make
states unable to pay, e.g., for police and firefighters)
o Unclear if rationale is constitutional structure or 10th
Amend. operating on its own
o (2) Congress CANNOT conscript/commandeer:
(a) State legislatures to enact particular legislation (even where
Congress could preempt the arena entirely) (New York v. US)
New York: Aspects of waste disposal act incentivizing states to
dispose of nuclear waste constitutional, but aspects requiring states
to take title of the waste if they fail to dispose of the waste through
the prescribed procedures unconstitutional
o Congress here both forcing states to regulate and
prescribing how they must do it, which it cannot do
o IMPORTANT: That states consented to the regulatory
scheme is irrelevant
FERC: Federal statute providing that unless states impose
particular procedures, Congress will impose them directly itself is
constitutional, because Congress can impose the rules directly if it
wants, but is just giving the states a chance to impose them
themselves
o The greater power includes the lesser
o Difference from New York: In New York, Congress lacks
power to require either alternative; here, Congress has
power impose one of the alternatives if it wants to
(b) State officials to implement or enforce federal regulation (even
where Congress could preempt the arena entirely (Printz)
Printz: Congress cannot direct state law enforcement officials to
implement federal policy of conducting background checks on
persons seeking to buy guns
o Dissent: Holding will require expansion of federal
bureaucracy in this area which will effectively preempt the
area entirely
Rationale:
o (a) Accountability: Credit would go to Congress, but blame
to the states
o (b) Funding: Congress must pay for programs it wants
implemented

o (c) Dignity: Diminishes state sovereignty if Congress can

boss states around
(c) BUT, Congress CAN require state judges to enforce federal law, under
the Supremacy Clause (Art. VI, Cl. 2) (Testa)
Note how this is incompatible with the commandeering principle
Field: Theres nothing particularly wrong with the commandeering
principleexcept that distinguishing between local and national
obligations can be rather difficultbut states rights advocates simply
made it up because they lack a constitutional doctrine they point to in
order to say the Courts Commerce Clause and 10th Amend. cases are all
wrong
o (3) Summary: Congress CAN regulate states directly but CANNOT require
states to regulate their own citizens
I.e., Congress CAN regulate state activities so long as Congress does not:
(a) Require states to enact certain laws, or
(b) Compel states to use their own personnel to enforce the
regulations
Action/non-action distinction: Congress CAN tell states they cannot do
something, but CANNOT tell them they have to do something (Reno)
Reno: Congressional amendment prohibiting state DMVs from vending
personal data from drivers licenses and regulating disclosure of such
information valid (not conscription or commandeering) because directly
regulates state activities rather than regulating manner through which
states regulate individuals
Baker: Congress can eliminate federal income tax exemption for stateissued bearer bonds (thereby forcing states to issue tax-exempt registered
board) because no procedural defect in the political process
Hypo (testing the limits): Sanctuary cities: Can Congress tell state courts
they cannot permit cities to be sanctuaries?
Arguably yes, under the Supremacy Clause (this arguably is the
limit of Printz and New York)