Constitutional Law I
The Marshall analysis requires both a valid subject and object.
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
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.
- 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
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.