Step 1: Is the thing regulated sufficiently within the scope of interstate activity?

1a) Is it a thing? 1b) That has a " substantial effect" on interstate commerce? 1c) Revival of the 10th amendment - exclusive zone
-Does it have economic value? 1aa) Does the -Does not cross state lines? Aggregate Theory - Wickard for states & dual sovereignty
-Noneconomic activities may be regulated under thing directly - Katzenbach - businesses using things purchased from interstate market & impact other -Since Lopez, the 10th amendment has been revived to
CC [but we are more suspicious of them] but cross state lines? parts of industry have "aggregate effect" prevent federal intrusion into the areas which are
maybe can't be aggregated [Morrison, gender - Lopez suggests cannot regulate intrastate noneconomic activity [Wickard was economic] traditionally the purview of the state, such as police &
violence - no categorical rule but suggests effects If thing does not - Justice Thomas in Lopez- rejects aggregation, commerce only = trade between people at health matters.
of noneconomic activity can't be aggregated] directly cross that instant. Substantial effects test allows for too much regulation. Needs to go.
-BUT Heart of Atlanta Motel - can aggregate state lines -
segregation.

1d) Is the regulation compelling new action by people? 1f) Economic Activities with ANY effect on Interstate
-Sebelius - Commerce power may ONLY be used to regulate things people are 1e) Should Court defer to Congressional findings Commerce in the Aggregate [Wickard, Katzenbach] -
already doing; it may not be invoked to require commercial activity [forced to eat of " substantial effect" ? [beef this up with cases!] -No distinction between production/trade; indirect/direct effect.
broccoli] -Traditionally, Court has given great deference to -Court does not look at activities of individuals but their cumulative
Sebelius Ginsburg Dissent - argued individual mandate should be consistutional Congressional findings [Katzenbach] [conservatives affect on interstate commerce in the aggregate
as a necessary & proper means for effectuating Congress's power of regulating less defential on discrimination] - Congress need only have a rational basis for conlcuding that the
health insurance under commerce power - But Morrison - did not defer despite mountain of regulated activity substantially effects interstate commerce.
evidence [liberals in dissent would have] - Congress can regulate purely intrastate activities if they
-For exam - - Sebelius - liberals would have deferred substantially affect interstate commerce in the aggregate.
- Are people really being forced? [Katzenbach - food came from out of state - movement through
-When does the burden occur? stream of commerce sufficient]
-Is there a choice?

Step 2: Is the measure taken within the scope of the Step 3: Does the issue implicate anti-commandeering
Anti-Commandeering via Taxing & Spending Clause
Commerce power? Via the N&P clause? [10th amendment] concerns?

New York v. U.S. -

2) Necessary & Proper Test - Congress doesn't have power Printz v. U.S. - New York v. US; South Dakota v. Dole; Sebelius v. NFIB
to compel a state to enact or Fed govt cannot compel - Congress may use spending power to incentivize programs it
Because most things Congress does under CC aren't
enforce a particular regulatory state/local officials to perform otherwise is powerless to implement if -
related to the physical crossing of borders, the N&P 1) Conditions clearly stated & ambigious [purpose - provide notice]
law or program. federally specified administrative
Clause must be invoked to give Congress authority. Congress may not simply tasks. 2) Conditions to receipt of funds bears some relationship to purpose
Sebelius standard - CJ Roberts made note of if ?commandeer legislative State executive officials cannot be of federal spending.
something needs to be " proper" . processes of the states by compelled to execute fed laws or 2) Cannot use cripping amount of funds to coerce state leaders into
directly compelling them to forced into service/perform even accepting conditions [insulates fed govt from accountability]
enact and enforce a federal ministerial functions ?
regulatory program.? commandeering as it?s applied to
CJ Roberts returns to McCulloch v. Maryland standard PLUS gives Accountability issue - state state executive officials is also " Gun to the Head" - Sebelius,
meaning to "proper" officials responsible but really unconstitutional. forbidden -
[McCulloch - N&P vests Congress with authority to enact provisions Permitted - South Dakota
federal govt responsible. -10th of total state revenue
incidental to enumerated powers & conducive to its beneficial v. Dole -
-Withdrew old & new funds
exercise] - 5% of state budget not
-Complete withdrawal if
1) End is within enumerated powers excessive
non-acceptance
2) Minimal degree of fit - "narrow in scope" or "incidental" to exercise - Provision of new funds, not
-No notice to states this was
of commerce power withdrawal of old
possible in accepting Medicaid
3) Not prohibited by other Constitutional provisions -Old & new funds not related
funds before [dissent disagrees]f
[individual mandate vests Congress w/ extraordinary ability to create -Accountability issues
necessary predicate to exercise of an enumerated power]

IS IT PROPER? Even if the action would be necessary for the

articulated goal, is it proper per an originalist reading of the
Constitution & precedent?