Is the target of the regulation an economic transaction (a.k.a.

traditional “commerce”)?

YESIs the commerce “interstate” (in

“stream of commerce,” relating to a channel or instrumentality of

interstate commerce)?

YES RegulationVALID

NO NO

Is the activity relevantly connected or related to IC?

Considerations:1. What is the size and power of the target? 2. Is Congress’s purpose frustrated by target’s activity?

a. When aggregated, would the target’s activity substantially affect IC?

b. If targets are difficult to distinguish from non-targets (i.e., adulterated and unadulterated food products), does the commingling / intermingling of both substantially affect IC?

c. Does the regulation seek to promote and regulate a prohibition on interstate commerce by directly regulating production and manufacture? (i.e., products of child labor forbidden to be distributed in IC; thus, child labor laws enacted to regulate production)

d. Does the physical association of the target with IC (i.e. location directly next to an interstate hwy – McClung) substantially affect IC? (a.k.a. “hooking”→ location hooks activity into IC)

YESRegulation

VALID under Commerce Clause

BUT

Is Congressional act forbidden by some external constraint on federal power?

(ie, state autonomy)

1. Is the law a law of general applicability (a.k.a. applies to States and private parties alike)?

YES

RegulationINVALID

2. Is there a coercive element (a.k.a. compelling the States or their agents to do something)?

RegulationVALID

BUT Note: Garcia purports to abandon Hodel’s test and give broad authority to Congress; but it is unclear that “traditional matters of the state” has actually been abandoned as a factor for determining whether an act of Congress unjustifiably infringes on state autonomy (see language in Lopez)

NO

NO

YES

(3.) Is what’s being regulated a matter of exclusive or traditional state concern?

YES

NO