(1) is the activity economic and commercial in nature,  (2) is the regulation of the activity necessary to prevent the undercutting of a broader regulatory scheme,  (3) does the legislation contain a jurisdictional limit, and  (4) is there a congressional finding. 	If the activity falls under 1 or 2, then it may be aggregated. 3 and 4 are dispositive unless the court can determine the statute is an invalid exercise of Congress’ commerce clause power because there is no rational basis (Hodel) for the congressional finding for the regulated activity.

The first two classes are real, pure commerce that Congress has complete, absolute, and plenary power to regulate. The two-part analysis to determine Congress’ power to regulate the third class is: 
(1) analysis under the commerce clause and 
(2) analysis under the necessary and proper clause.
	Under the commerce clause analysis, with activities in class three not being commerce, the activities must have a substantial economic effect on commerce in order to be regulated. Wickard provides that when an activity is not commerce and is purely local, Congress may still regulate as long as it has a substantial economic effect. To determine substantial economic effect, the Lopez factors are applied: 
(1) is the activity economic and commercial in nature, 
(2) is the regulation of the activity necessary to prevent the undercutting of a broader regulatory scheme, 
(3) does the legislation contain a jurisdictional limit, and 
(4) is there a congressional finding.
	If the activity falls under 1 or 2, then it may be aggregated. 3 and 4 are dispositive unless the court can determine the statute is an invalid exercise of Congress’ commerce clause power because there is no rational basis (Hodel) for the congressional finding for the regulated activity.

Commerce Clause (Part 2)

Abby Fingerlin

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