Constitutional Law I
The Marshall analysis requires both a valid subject and object.
First, the subject of the statute must be determined. The subject of the commerce clause is "commerce" "among the several states."
Regardless of whether the subject of the statute is commerce or not, it still requires a valid object. If the subject is commerce, it must be calculated to effect a valid object, while under the Necessary and Proper Clause, the subject must be plainly adapted to the object.
Then, the object of the statute must be determined and analyzed.
Marshall listed three possible objects for valid exercise of the commerce clause:
- To remove discriminatory trade barriers imposed on out-of-staters
- To promote harmonious relations among the states
- To preempt or remedy state laws
The Marshall analysis has been largely abandoned for the Commerce Clause.
Basically go: Champion → Wickard → Lopez → Raich
The object test was removed in Champion, which instead allows any statute which is calculated to effect a police power. Now, virtually anything is a valid object under the General Welfare Clause.
Under the prohibition principle, the subject test is still used sometimes. Champion. Generally it is not required however. Wickard's substantial effect test allows any activity which in the aggregate substantially affects interstate commerce to be a valid subject matter.
Lopez tried to limit Congress' power by clarifying that Wickard required the activity to be economic, but listed three ways to get around it:
- Making the statute an essential part of a larger regulation of economic activity
- Showing some nexus to interstate commerce
- Like requiring that some good come from out-of-state
- Develop a better legislative record showing some substantial effect on interstate commerce
Raich then loosened even the substantial effect however, saying that an actual effect need not be shown, but only a rational basis for thinking it might. This will basically never be questioned.
So, in summary: Congress must have a rational basis for finding that some economic activity in the aggregate substantially affects interstate commerce for the purpose of promoting the general welfare.