As we observed in Lopez, modern Commerce Clause jurisprudence has "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."
[ Note from RFD: This includes laws regulating "the terms and conditions on which goods or services are sold interstate" and may even include laws restricting "the types of goods" that may be sold in 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."
[Note from RFD: The instrumentalities of interstate commerce include interstate shippers such as railroads, airlines, trucking, etc. Thus, as May & Ides put it: "Congress may impose safety standards on local or intrastate carriers that use the same railway tracks, airspace, or highways as interstate carriers, in order to prevent these local carriers from endangering interstate carriers that operate on the same routes." ]
"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."
Notice also that, under the Necessary and Proper Clause, Congress has the power to "make all Laws which shall be necessary and proper" to "regulate Commerce among the several States."
And as Justice Scalia notes in Raich (p. ---):
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez ...suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.Finally, I think the distinction the Court makes between Lopez & Morrison on the one hand, and Raich (and Wickard) on the other is that the latter cases involved regulation of "quintessentially economic" activities that substantially effect interstate markets. The Court defined economic activity as "the production, distribution, and consumption of commodities for which there is an established, and lucrative interstate market."
Thus, when Congress regulates non-economic activities—such as forbidding guns in schools, or crimes or torts
involving violence, or the mere failure to purchase a commodity--the law will
almost certainly be beyond the power of Congress under the Commerce Clause.
And always remember importantly that
even if a national regulation is otherwise within the power of Congress under
Commerce and the N & P Clause--i.e.,even if a regulation is deemed
necessary--it must also be proper and ‘‘consist[ent] with the letter and spirit
of the constitution."
