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Ex Parte McCardle: Editor brought habeas proceeding. Lower ct refused to hear. Appealed to Sct under fed law granting app. After heard arguments. Congress passed new law revoking Sct's AJ granted in habeas proceeding
What is the extent or scope of power under Art III to make excpetions to Sct's appellate jurisdiction: The exceptions pwoer is power Cong has by leg to withdraw from Sct's AJ to hear cases. Cong could totally eliminate AJ...Teh exceptions pwoer is not an ability to transfer AJ to OJ
Exceptions power: 1. Should be used in careful bal
2. Unlmtd exceptions power serve to gove Cong coutner check over Sct's DM. Where ct strays too far, Cong can strip power
3. Cong failure to strip power may = acquiescence
Essential Fucntion Tehory of Exceptions Power: 2. Congress may not use exce power to destroy the essential role of the Ct.
2. The core or essential fucntion of the Sct is to keep Cong wi/the Cons tlimits.
3. If Cong can insulate law from App rev then Congress can write Sct out of the const plan
Critique of Exceptions Power: 1. View is inconsistent w/Marbury's rationale of Judicial Review as incidental
2. Basis for JR is not that ct has essentail check-bal role to play. Rather JR power si the incidental byproduct of normal case deciding function.
JR DN define any role. Marbury just ext of what ct has power to do
Indpeendent Const Barries Theory to Exceptions Clause: 1. While ARt 3 Sec 2 says nothing about limits of Cong power, but particular exercise of exceptions poer has to be read in context of entire doc
2. Limitations in othe rparts of Const
3. For ex Congerss under exercise of exceptions power CN pass law that says only registered Republicans could appeal adverse decisions to the Sct.
4. Would be invalid b/c violates EPC
Practical Limitations on Congress's Exceptions power: 1. Congress often tiems responds to controversail decisions of the Sct. Populace unhappy
2. Important not to undue decisions of the ct or take away J b/c it locks in bad decision
3. Sct will eventaully alter its view
4. Not allowing Sct ot hear weaken's centeral gov
McCulloch v Maryland: 1. Congress created bank. MD tried to tax. Bank refused to pay.
Issues in Mc v MD: 1. Has congress the power to inc a bank
2. Is the st tax on the bank const
Mantra: Fed gov't is a gov't of enumerated or delegated powers. Fed gov't can only exercise those powers granted to it in the const. By contrast st gov't power inc general police power.
Where is power derived from: 1. C DN explicitly grant Cong the power to inc a bank
2. Fed gov't govt' of enumerated powers, C DN grant power to create a bank Cong creates a bank
Implied powers: 1. Negative inference, nothing in the C expressly limits congress's pwoer
2. Based on historical understanding. The art of Confederation contained a provision that expressly lmtd Congress's power to only those expressly granted. C adopted in place of Art. T/F SN impute C w/consideration which resulted in death of Art
10th Amend in Mc v MD: 1. Whatever is res'd to the sts by the 10th Amend is a function of whatever has not been grnated to the fed gov't
2. The C cannot set forht explicitly all the power granted to teh fed gov't. La Limitation
Structural Limitation in Mc v MD: 1. Art 1 Sec 9 limits the things Congress cannot do
2. Why would there be a can not do list when there is a can do list
N & P Clause Art 1 Sec 8: 1. MD/C that N&P = absolutely necessary. MD's view would limit Congress's power. The exercise of implied powers would only be OK if absolutely essentail to giving effect to the enumerated powers
Semantic analysis: 1. MD's N&P interpreation is possible.
2. HW ct rejects dictionary plain meaning approach.
3. "necessary" is sued in various senses & in its construction the subj the context the intention of the person using htem are all to be taken into view
Determination of meaning of the word necessary: 1. Lk to drafter's intent. teh intent was for the C to endure for ages to come. In order to last, const must be flexible enough to adapt to changing conditions
2. Cong argues that it was put in a section that grant Cong powers not strestricts them
3. The tension b/w the Ct & MD is an issue of flexibility of the N&P clause & Cong's power generally
Instrumental Rationality: 1. Rational basis, means defining poer
2. Let the end be legitimate let it be wi/the scope of the C & all means which are appropriate, which are plainly adapted to that end, which are nto prohibibted, but consist w/the letter & spirit of the const are constitituional
Scope of N&P: 1. All means rationally related to a legitimate end
Test of Instrumetnal Rationality: 1. Focus on link b/w means & ends
2. Natuer of link: means must plausibly furhter rather than retard or have no effect on the ends
3. The test is highly deferential: an YDM applying htis is highly deferential to DM being rev'd
How to cook a steak: 1. The means are to cook the steak in hot water; the end is to ocok it
2. Bring lawsuit judge sd going to use IR
3. The costs assoc w/the decision are irrelevant if the means gets you the end
3. Costs will enter DM if the costs are extreme. Ex set fire to house in order to cook the steak. Short of th eaction being insane, the IR DM will not take into acct
4. Under the terms of IR, all of the types of cooking the steak are the same. the host has no way of applying a test of IR b/4 he picks one. Had to use some standard other than IR
3. DN care which one
Distortion Hypotehsis: 1. White sheet of paper behind red film. Red No. What you DN recognize is that the color you see is a function of what you are looking through, not necessarily what you are looking at.
2. If unable to step back & be on the side b/4 JR, fro all intents & purposes it is ret.
3. The doctrine of the Scoep of Congres's pwoers in Mc is a function of looking through the red glass of JR. Thus if we rely solely on judicial opinions, distortions are created. Possibility not telling us what the Const is at all
The Commerce Clause: Art 1 Sec 8 cl 3. To regulate commerce w/foreign nations & among the several sts & w/the indian tribes
In evaluating the Constitutionality of an act of Congress what 2 questions: 1. Does Congress have the authority under the Const to regulate
2. If so does the law violate another constituional provision or doctrine such as infringing on sepration of powers or infringing on individual liberty
Gibbons v Ogden Issue: Does the CC give congress the power to license steamboats wi/the sts
Strict constructionist: Read the txt in a way the confines the power
Subjects that can be regulated as commerce: 1. Interstate mvmt of goods & poeple
Subj that cannot be regulated under CC: 1. Commerce which is completely internal: described as commerce that is
2. Completely wi/a particular state
3. Which DN affect other states and
3. W/Which it is not necessary to interfere for the purpose of executing some of ht egeneral powers of the govt
2 Defnitions in Gibbons: Commerce: intercourse
Among: intermingled with
The territorial extent of Congressional power is: 1. Ltd only to act on st laws that restrict the mvmt of goods in IC
2. Interstate mvt itself once it happens
3. View of reg power rejects the argument that behavior occuring wi/the st b/c it occurs in the st of IA belongs only to the st of IA
Commerce clause view in Gibbons: 1. Congress's pwoer is plenary wo/limitation
2. Wisdom allocation: Ct allocating questions of wisdom to Congress. (Is this a wise CC reg? Does this reg represent a good policy decision? B/C wisdom Q involve no Q of con law. Important public policy but not con law
EC Knight (Shreveport rate cases): 1. To what extent can Cong under the CC reg LA or activities occuring comopletely wi/the boundary of the state.
2. Whether grp of sugar refineries that represents 98% of sugar refining in the st falls wi/terms of Sherman Anti-Trust Act: Ct says no
Why DN 98% of refineries fall wi/Sherman anti-Trust Act: 1. Not a Q of Con Law but statutory interpreation
Direct v Indirect Effects Test: If a local activity has direct effect upon IC then it falls wi/the scope of Cong's CC power. If it has an indirect effect, than th eLA is outside the scope
How to measure DIET: 1. Not a measure of actual impact
2. The interpreation of C should be pragmatic: McCulloch
practicial difficultlies w/Diet: 1. impractical scheme for dividing gov't power, will restrict Cong from reg activities that have serious adverse impact on ntl economy
2. Sts who tehoreticlaly have the power are both unwilling & ill prepared to reg creates reg vacuum
3. Ct DN apply test consistently
Dual federalism: The notion that certain powers res'd to the sts by the 10th Amend. Oppoite of McCulloch. Dual federalism & the contents of the 10th A work as a limitation. Thus if reg of particular activity falls wi/the powers res'd to sts, then fed govt is wo/power to reg activity
Critique of Dual Federalism: 1. Perception of fed on which DIET is based is a static concept. DN take into acct changing circumstances that might effect the reg of activity.
2. Dual fed locks us into a particular use of fed powers which is in contrast w/Marshall's concept of interpreting the C in a way in which the C can change: Marshall argues in marbury that the c was a doc that is to endure throught the ages & can only do that if it is dynamic
Critique of Dual Fed con: 3. Premise of Dual fed is inconsistent w/basic C plans for allocation of J. In Gibbons: Marshall says that the fact that activity takes place in st & st has reg power DN mean that fed govt DNH power to reg activity. C represents overlapping as opposed to mutually exclusive jurisdiction
Crucial DIET Question: Does the st of IA have the power to reg farmers growing corn in the st of IA? If yes then Congress can't regulate
2. Certain activities become classified/labeled as falling wi/the state. Classification sys inc mfg, mining, ag
Shreveport Rate Case: F: Competition b/w 2 cities in TX & LA that wnat to be pt of embarkation in E. Tx. Rate strucutre charged by RR is that it costs more to move E toward Shreveport than S to Houston
Issue: Shreveport Rate Case: Can Congress regulate a totally intrastate activity
Decision: Sct says yes can reg. Not outside the scope of Congress's regulatory power under the CC b/c diff rate strucutre has an adverse effect on the mvt across st lines
Test applied in Shreveport Rate: SET: Substantial effects test: Cong can regulate completley intrastate activities if they have a substantial effect on interstate commerce
2 competing doctrines: Knight: highly formalistic
Shreveport: highly pragmatic
Champion v Ames lottery case: Upheld the Federal Lottery Ac twhich prohibited the importing, mailing or interstate trasnporting of lottery tickts
Issue in Champion: May congress not only reg but prohibit an item moving across state lines? Is the prohibition of lotto tickets an appropriate means of the CC? Valid Means for a valid end?
Decision in Champion: 1) Cong DN assume to interfere w/activity exclusively wi/the st but only commerce among several sts
2. So long as the focus on reg is on interstate movemnet, then there can be no question on the propriety of fed reg, e/t the reg may have an impact on hte LA that are wi/the J of the st. The potential adverse effect on LA like the purchase of tickets is irrelevant to validity of the fed reg
Is it appropriate for gov't to regulate public morals?: 1. In Champion, yes. Both st & fed gov can regulate public morals
2. Fed Act is merely supplementing not supplanting the policies of the state. Both federal 7 st seek to supress lotteries
Determination of whether st or fed reg trumps: 1. Are the two responses indepnedent of ea other
2. If not then the sts have cap to constrain/limit fed policy even where Fed polciy is dealing w/IM of goods: state would be defining fed limits. The sts can exclude the govt when their policies are inconsistent
Applying McCulloch Instrumental Rationality test to Champion: 1. Prohibition is an appropriate means to the end of regulating public morals
2. T/F Congrss has the power to reg
3. Wisdom allocation
4. SS arg. DN work Like mart ct will cross bridge whne they come to it. Teh possible abuse of a power is not an arg against its existence
Key question added to the algorithm: Need to look at where the focus of the reg is ISM or LA
Dissent in Champion: 1. Lottery tickets = ins K, they are not comm & t/f e/i there is IM it CN be reg. Ins K not under CC,
Difference b/w Maj/Dissent rationale in Champion: 1. Pretext limitation
2. Congress is attempting to exercise power pretextually to acomplish something that it has no pwoer to do: regulate morals JOb of the states
What determines the motivation of Congress: 1. Not the subj motivation
2. congress's motivation is determined by the natural & probable consequence
3. Inhibiting sale of tickets: Congress CN pass S rpohibiting purchase & sale. Cong would prohibit st's slaes
3. Dual Federalism since the st can regulate fed gov cannot
Dissent in Champion's respone to the mjaorities view of pragmatism & necessity: CC CN be enlargfed b/c of present views of necessity. Maj should be asking how lg is the scope. If Congress has the power to keep lotto tickets from moving across st lines, they ahve the power to keep anyhing from moving in IC
Hipolite Egg Co v US: Label DN disclose deleterious ingrediant. Pretext limitation: Teh destruction & confiscation of articles which are outisde the scope of CC is ultimate goal
Pretxt: The power to reg is apporaite to the r to bar them from IC & completes its purposes which is not to prevent merely the physcial movement of adulterated articles, but the use of them, or rather to prevent trade in them b/w the sts by denying to them the facilities of IC. & Appropriate means to that end which we have seen as legitimate are the seizure of & condemnation of the articles at their pt of destination
Hammer v Dagenhart Issue: Is it wi/the authroity of Congress in reg among the sts to prohibit the transportation in IC of mfr goods that were produced through child labor
Holding: Congress DNH power to reg production of goods b/4 they are produced & to reg harmless commodities
Dual Federalism concern: Exceeds gov't power. Enroaches on st gov't power
Pretext limitation: First seen in McCulloch. Analyzing the purpose of the statute. The purpose of hte S will be determiend by the natural & probable consequneces of the statute
Purpose of FCLA: Prohibit transportation of goods made by child labor hw the real purpose is to reg child labor. T/F the staute is invlaid b/c based on pretext limitation
Rational Basis standard of review: Congress has the power to reg public morals values (Champion) but here htey are nto reg child labor per se which is local; they are reg goods that child labor produces
Ct Applies DIET: Child labor in mfg has an indirect effect. Purpose of DIET is to ID activiites that can't be reg (activities that indirectly effect IC) Congress can only reg things that are inherently evil, this is not inherently evil
Holmes dissent in Hammer: 1. If you take a lk at CC al wo/Q there is power to reg among the states, S is facially valid Indirect applications are what is causing hte prob. Lk at direct use of statutes
Holmes says maj's view of commerce among several sts is invalid based on 2 obj both of which HOlmes says are invalid: 1. Crtiques amj's prohibition analysis (when Cong prohibits ST that prohbiition power is a special aspect of th epower to reg & t/f needs special power
2. Prohibition DN raise any special C issues
3. Any reg is a form of prohibition. Any reg is prohibiting ST.
4. FCLA raises no special concerns
Maj Cong when exercising its public morals power cna only prohibit inherently evil items. But it is for Cong to decide: 1. HOlmes in my opinion even if ltd this way, goods produced by CL are inherently evil
2. Ct can't say what's evil Congress can. Ct should afford Congress deference
3. And e/i prohibition power lmtd to items inherently evil the evaluation of wehther ST is inherently evil is an evalutaiton that belongs to Congress not Sct
Holmes critique of pretxt anlaysis: 1. Holmes agrees w/maj that Cong has no power under CC to reg CL
2. Under DIET an attempt to reg CL would only have an indirect effect on IC t/f no power
3. In spite of that Holmes bleieves the maj's prext analysis is worng. Excluded any inquiry into the purpose of an act apart from that purpose was wi/the power of Cognress.
Holme's natural & probable consequences analysis: 1. If we find A purpose that is legitimate we DN care that there are other purposes that are not ligitimate
2. Rejection of pretext?? Holmes says purpose is not getting us anywhere. We can find nat & prob conseq to fit our cause, then find another purpose, nat & prob conseq now runs contrary to our cause. Useless
Holmes alternative to nat & prob consequences: 1. Hlmes says alt shuld be to use the purpose to show the subj intentiosn of the statute
2. Not saying that he's using the pretxt limitation to measure the subj motivation
3. If lk at S on its face it a restriction on ISM
What does Holmes ID as the real prob in Hammer: 1. fed gov is reg commerce is interfering w/ST that belongs to the sts
2. Some reg of mvt is not valid b/c it improperly interferes w/the power of the st
3. The act DN meddle w/anything that belongs to thests. Sts can do anything they want regarding CL. Fed statue DN care as long as thye DN ship in IC.
4. When seek to move product beyond their border no longer wi/st's rights
The Ct and the New Deal: 1. Roosevelt used hte CC power as a rationale to put forth much of the new deal leg.
2. First test was the Ntl Industrial Recovery Act of 1933 "the hot oil case" the petro code under hte NIRA was invalidated on the gorund of excessive delegation of leg power to teh exec
RR Retirement Brd v Alton RR: Invalidated fed S taht req'd RR to est pension programs for emp. Affects all IC carriers
Linking story in Alton: Fed gov't argues that this is vlaid CC reg b/c happy old people-->income security-->good morale-->good interstae carriers
Fed gov't makes a mcculloch means defining arg: The end is trains running on time. The means is provided pensions.
Ct rejects McCulloch means defining argument: 1. In McC ct syas that judgment how nec are the means belongs to Cong
2. In Alton the ct says they see no relationship
2 alt to ct's rejection of relationship in Alton: 1. That no R. person lking at relationship could see it. If that's what ct is saying Mc & Alton are consistent. The problem is that it is impossible that no one would see link
2. Could say that while hte relationship exists the relationship is not subst enough to justify the fed reg. Teh benefits dn justify the costs. This is a plausible position, but is inconsistent w/McCulloch
Ct says Alton Statue invlaid based on pretext grounds: The purpose is promotion of the social welfare of workers & DN affect com. Ct says they are not convinced that any relationship exists b/w mandatory pension & goal of safe & efficient carriers Goal is good one but ct DN see connection
Slippery Slope Alton: If the connection exists in this case sufficient to justify hte reg then there is no limit to the use of CC to est other social welfare programs
Schecter Poultry Corp v US (Sick chicken case): 1. Found conviction for violating the wage, hr, & trad epractice provisions of a code that was enacted under the Ntl Industrial Recovery Act tb unconst.
2. Sick chicken case there was not enough data to show the requisite nexus b/w hte slaughterer and hte interstate poultry business. Only selling to a wholesale poultry mkt in Brooklyn
Sick chicken rejected hte stream of commerce rationale of Swift & the affecting commerce legacy of Shreverport: Majority applies DIET t/f reg fails
Cardozo's concurrence in sick chicken: 1. Agrees w/conclusion but thinks should use SET
2. Dif b/w 2 SET & DIET one based on assessmetnt that the activity is having SET the other treats the effects as irrelevant (DIET)
3. Says fed reg cn be jsutified by assessment of the activity There has to be a degree of impact for Cong to step in. Any LA has effect on IC. If effect alone is the determination anything can be reg.
SET Cardozo: 1. Effect on IC must be substantial
2. Ripples on the pond will eventually become so faint as to not justify reg
Carter v Carter Coal (high pt of DIET): 1. Ct invalidates Bituminous Caol Conservation Act which tried to reg max hrs & min wages in coal mines
2. Enacted 13.5 tax levy on all prdoucers who DN accept the code
Result in Carter Caol: 1. Ct says CC does not give Cong power to promote gen welfare
2. Ct classifies labor as rpoduction, not interestate, t/f st should control
Why was the Bituminous Coal Conservation Act: 1. Prob in industry: falling prices - falling below cost of production. Coal cos trying to cut or reduce amt spending on production. Emp unhappy
2. Strikes-->prdocutivity down-->unproductive steel industry-->unproductive auto industry T/F coal major part of economy
High pt diet co: But the matter fo degree has no bearing upon Q since Q is not What is the extet of the LA or condition or the extent of the effected produce upon IC But what is ht erelation b/w the activity or condition & the effect
DIET: Shall operate proximately, not mediately remotely or collateraly to produce the effect
Turning point NLRB v Jones & Laughlin STeel: 1. Jones mfr iron & steel. Pull in raw product from all over US transform & ship pout. Clearly interstate activity
2. Ct upholds NLRA which allows collective bargaining uints
Issue in NLRB: 1. Is the statue c on its face? Does Cong have the power to reg under CC
2. Is the application of act unconst to wrokers in production
3. Apply SET to the statute & the activities trying to regulate
Is the S Cosntituional on its face? Does Cong have the power under CC to reg in this way: 1. Y, The act is carefully lmtd to emp/employer relationships that affect IC. DN try to reg all employee/employer relations
2. It is the effect on Comm that defines the scope & not the source of the conduct being regulated. REjecting classification of DIET. DIET says lets lk at the activity bieng regulated. Teh ct in NLRB lks at impact of the activity on IC
Applies SET to the Statute & the activities it is trying to reg: 1. D hav erfused to bargain, making retailitory firings
2. Ct says yeah this has an effect on IC. Ct argues that refusal to bargain & retailitory dismissals cuases unrest.
Linking story in NlRB: Employer says drop dead you're fired-->leads to strikes-->leads to curtailment of production of goods-->fewer goods cross state lines.
Linking story: Taking whatever is the private LA & linking it to mvt of goods & ppl across st lines
Scope of CC in NLRB: 1. Has to be understood upon pragmatic considerations
2. We have often sd that IC itself is a practical conception & we SN ignore practical experience
US v Darby: linking story, aggregation doctrine, Darby bootstrap: 1. Challenges const of 2 sections of Fair Labor Standards Act
1. 15a1 prohibits the interstate shipment of goods produced under conditions that DN conform w/FLSA reg. Saying to employers: do whatever you want but if you don't comply w/FLSA regs, you can't sell goods interstate (like Hamer argument in child labor context)
Is 15a1 valid exercise of CC: 1. Y
2. REg mvt from 1 st to antoher. Clearly falls in Cong's scope under CC.
3. Since the purpose of the S is mvt of goods across st lines the pretxt limitation DN work (invalidates hammer)
4. Ct overrules Hammer: Hamer's inherently evil was made up & there's nothing that supports it. Abandoned
2 rationales for 15 a2 linking story, aggregation & darby bootstrap: 15a2 regulation of LA. Says to employers that if you eploye anyone that produces a good for IC you must pay that person the federally specified min wage
SET Application in Darby to 15a2: 1. How do wages have a substantial effect upon IC. Linking story
2. Low pay, grumble, strikes, curtailment fo prouction, affects goods that move in IC, Bt ct says low pay, competiton w/local counterparts, affects IC
Aggregation Doctrine: It recognized that in present day industry, comeptition by a sm party may affect the hwole & that the total effect of the competition of many sm producers may be great
Frame of reference for ag doctrine in Darby: If we take the activity & add it to all other similar activiites, does it have an effect on IC? It DNH frame of reference if we look at it by itself
Ct offers 2 rationales for upholding 15(a2): 1. The power of Cong over IC extends to activities intrastate which have a SET or the exercise of the cong power over it
2. The Rationale in teh or part is saying htat 15a2 is valid reg if 15a2 can be instrumentally linked to 15a1
Darby bootstrap: 1. McCulloch: Means defining ower under N&P
2. Teh legitimate end is the Reg
3. ISM which is mainly found in 15a1.
4. Ct is saying that 15a2 is a way/means for accomplishing 15a1
Darby Bootstrap con: 1. What is a way to make sure item won't move across st lines by someone who hasn't been pd a min wage. Make them pay a min wage
Make assumption that LA being reg Can't meet SET assume 0 affect. Will we be able to link the LA to IC. Subst effect? No O+0+0: Solution: To reg LA w/O effect need to isntrumentally link the activity to that reg of ISM. This provides a method of reg LA that WN meet SET. MIrror image of the Hamer pretext limitaiton rev'd
Wickard v. Filburn: height of aggregation approahc: F: Wickard grows wheat & uses a portion for his own consumption. Ag Adj Act reg how much farmers can grow to control supply/demand. If there's an oversupply they get taxed
Issues in Wickard: 1. Can Cong reg what explicitly will not be shipped in IC
2. Farmer syas my LA of growing wheat for myself is a LA having only an indirect efefct
3. Ct says you dummy we haven't use DIET since 1936
How does Farmer Filburn affect the wheat market: 1. Home grown wheat affects supply of wheat. Right now there is a surplus. When mkt price of wheat rises, wheat grown initially for consumption will go to mkt
2. Home grown wheat affects demand for wheat the more grown for home consumption the less that will be bought in the mkt
Aggregation Approach in Wickard: Can reg if hte indivdiual activity in the aggregate has a subst effect on IC in teh aggregate Farmer uses his excess on his farm has an effecton IC. The contribution for demand may be trivial by itself but not enoguh to remove from fed reg when as here contribution taken together w/others similarly situated is far from trivial
Ct applies secondary decision making role: 1. DN mean ct's role is secondary
2. When ct acts as a primary DM it will apply a test such as SET wo regard to the DM of Cong. Ct will ask if in its own judgment htere was evidence that the activity SET. In Schecter Cardozo acting as a primary DM Takes the position that it is his role to make a determination that the T LA has a SET
Secondary DM role/Rational Basis approach: 1. Ct looks at Cong who is presumed to have made a jdugment & the ct takes judgment into acct
2. Takes SET & lks to see if there is evidence that Cogn CH conlcuded tha the activity had a SE On IC. will find const e/i the ct would have come to a diff conclusion absent Cong's findings. Understand 2 R. ppl judgming facts will come to diff conclusion but can still think that the other's conclusion is R.
Overinclusion: How to ID overinclusion in CC
1. ID unerlying Const rationale: In CC its that Cong can reg LA that have a SE on IC
2. See if there is a match b/w T/Goal & the sum/totla of behavior reg by S
3. If you take the sum total (R)-behavior reg by statute (t)= excessive behavior. Than its overincluded
4. Analyze ease/difficulty of distinguishing OB from TB. If nearly impossible to distinguish, this is an adequate use of Congress's means defining power.`
Perez v US overinclusion, reg of class of activity: 1. Cong made laon sharking a fed offense
2. E/T loan sharking is LA, Cong had substantiali evidence that lonasharking had effect on IC

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