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In addition to there being a lot of pages, and cases, you will also find yourself dealing with a multi-variable analysis (sort of). This is a classic case of the Albert Einstein story (“Yes, young man, I know. The questions on this year’s final exam are the same as last year’s. But all the answers are different.”) Over the years the Supreme Court seems to keep changing the way it thinks about, and answers, these unchanging “interstate commerce” questions. Where a case is located along a decisional continuum turns on a number of questions and variables.

You may be able to read through this much material with a photographic memory and keep it all in mind, and interrelated, without a note. But I can’t; and I first started reading these cases about 50 years ago and have re-read them a good many times over the intervening years.

So I suggest here’s one time when you really will find it useful to make reading notes.

Before you (before class) and we (during class) can address how the Supreme Court has analyzed its holding in a given case and where it ends up, in terms of a given variable or question, we need to know what those variables and questions are.

To assist you in that task, here are some illustrative questions to ask yourself about each of these cases -- before I ask them during class -- as you try to make sense out of this material. :

1. What, exactly, is Congress trying to regulate?

2. What is the relevance of the nature of that activity to the presence or absence of Congress’ constitutional authority to regulate it under the terms of the “interstate commerce” clause?

3. Does it directly relate to the actual interstate movement of something?

4. Does that “thing” need to be an “article of commerce”?

5. What if some of the things are, or will be, a part of “interstate commerce,” but not all, and they are all intermingled?

6. Under what circumstances can intrastate movement be regulated by Congress as “interstate commerce”?

7. What is it about that movement that is being addressed: ease of movement (elimination of restraints; encouraging interstate commerce), prohibition of movement (e.g., dangerous commodities), prices charged for movement?

8. Does the Congressional power to prohibit the movement of dangerous things in interstate commerce include – and, if not how is it distinguished from – the power to regulate the conditions of manufacture of products destined for interstate commerce?

9. Does the case involve an activity that for the most part goes on inside an individual state and would normally, informally, usually be thought of as an intrastate activity?

10. If so, what is necessary for it to become “interstate commerce”?

11.  How long beyond the time of the interstate journey does the fact that “interstate commerce” was once present continue to authorize Congressional regulation?

12. What is meant by the distinction between “direct” and “indirect” effect on interstate commerce? Where is the case in question along the “effects” continuum?

13.  In measuring those “effects” where is the Court along the continuum from the effect from the individual party in the case to the cumulative effect from all individuals similarly situated?

14. Where is the case along the continuum from “goods in interstate commerce” to “employees engaged in interstate commerce” to  “employees engaged in manufacturing goods for interstate commerce” to “employees of firms manufacturing goods for interstate commerce”?

15. Are there fact findings going to the “interstate commerce” justification for the regulation in question?

16. Have they been amassed and articulated by Congress?

17.  Does the law itself make reference to “interstate commerce” or findings?

18. Or is the Court will to engage the assumption that Congress must have, probably did, or reasonably could have, made such findings or assumptions?

19. If so, does the Court then make the findings, or does it merely address whether Congress would have had a “reasonable basis” for such findings?

20. Is the motive of Congress relevant?

21.  Can Congress regulate anything it likes, regardless of purpose or motive, just so long as the “interstate commerce” element (whatever it may be at that stage of Supreme Court history) is present?

22.  Must constitutional authority for Congressional “interstate commerce” jurisdiction be limited to “commerce” (that is, “economic” or “commercial” activities), or can it also include “police power” (criminal, regulation of public morals) activities “traditionally” the responsibility of states?

23.  “Who decides?” That is, are the Court and Congress addressing the extent to which “the people’s” stake in questions of federalism, in the “interstate commerce” context, can best be resolved in a political, or a judicial, arena?

Former Speaker of the House "Tip" O'Neill is credited with the line, "all politics is local." Whether or not all politics is local, clearly all commerce is local. That is, "interstate" has no dimension, no territory; products are manufactured, loaded on trucks, and sold within some given state. So the constitutional and public policy questions become, how do we decide which, when and why it's OK for that local commerce to be affected in some way by an act of Congress?

For purposes of this analysis we need to put aside for the moment our public policy, moral or religious judgments about the seriousness of a given problem and the desirability of some legal relief. We are not addressing whether it's OK to pay workers 10 cents an hour, kidnap and transport women for prostitution, or sell diseased meat. Let's assume there are multiple sources of constitutional authority to remedy these problems (even though there may not be). What we're addressing are the most reasonable ways of interpreting the language of Article I, Sec. 8, Cl. 3, given the language itself, the context in which it is found, and the persons and times that led to its being drafted in the first place.

At one end of our continuum we have what is clearly interstate transportation. One can argue about whether "transportation" is "commerce." But if anything can be called interstate commerce, it would seem to be the transportation system that enables the movement of persons and goods "among" the states.

However damaging to the effort to create a national economy, it is not totally irrational to conceptualize a distinction between "commerce" (in the sense of trade, sales, and shipment) and the local production of products (manufacture, agriculture, mining, or fishing). And yet, when most to all of that local activity is clearly intended for, and does in fact enter into, a multi-state transportation and trade it seems not unreasonable to consider it "interstate commerce."

It is a bit of a leap to go from regulations of "commerce" (whether transportation or production or sales) to those things that might have an "effect" (or "substantial effect") on commerce. That is what really opens the barn door.

Whether "commerce" or an "effect" our consideration is necessarily affected as well by the nature of the congressional regulation.

Regulations that are clearly focused on commercial or economic aspects of "commerce" (railroad rates, or price fixing), or the products themselves, even their quality (chickens, eggs), give us less pause than those that seem primarily motivated by moral or anti-criminal concerns (interstate transportation of women for prostitution, sales of lottery tickets, or loan sharking).

Certainly a persuasive case can be made for worker protection (wages and hours, rights to organize, health and safety, retirement benefits). There are even plausible arguments as to why there is enough of an "interstate commerce" connection to make the laws constitutionally legitimate. But it is also at least a bit of a stretch.

At one end we have a law or regulation that clearly deals with commerce, and express findings by Congress, written into the law, as to how the problem regulated has an impact on interstate commerce. Next would be findings in the committee report, but none in the law. Next would be no "findings" in a formal sense, but lots of witness testimony, and legislator comment, about the impact. Next would be no findings, no legislative history, but a case in which it would be obvious that had Congress addressed the issue it could reasonably and easily have come up with findings. And, at the far other end of the continuum, we have the case of a clear congressional motive to deal with a subject that is far removed from what one would normally think of as "commerce," and the total absence of data or rationale supporting an "interstate commerce" effect and no intuitive way of suggesting it might exist.

The parallel continuum involves the relative role of Congress and court. At one end the court does something analogous to a "trial de novo." It takes responsibility for making the finding of an effect on interstate commerce. It gives some weight to what Congress has done, but doesn't treat it as decisive. It's willing to consider the possibility of "pretext." On the other hand, it's also willing to do Congress' work for it, looking for the interstate commerce effect even when Congress has forgotten to address the matter. At the other end of the continuum is a court that gives virtually total deference to whatever Congress does. So long as the matter at hand has something to do with, or some possible relation to or effect upon, interstate commerce, and so long as the subject and means chosen are not expressly forbidden by some other provision of the Constitution, the court will find the act constitutional under the interstate commerce grant of power.

An intrastate transportation rate may have such a direct, and devastating, impact on clearly legitimate efforts to regulate interstate rates that Congress must be able to reach it.

If Congress has a legitimate interest in regulating the quality of a product that is sold in both intrastate and interstate commerce, it may be necessary, as a practical matter, for it to regulate the entire output, or shipment. If it is to regulate some aspect of employees working in interstate commerce it may be necessary (or permitted) for it to regulate all employees of a firm doing business in interstate commerce (even though many of the employees are not involved in the interstate aspect of the business).

Finally, the fact that the effect on interstate commerce from the activities of the party involved in litigation may approach de minimus may, nonetheless, permit a finding of an adequately "substantial effect" if the aggregation of activities of those similarly situated would constitute a "substantial effect" (as with home grown crops).