Channels and instrumentalities

QUESTION: First, when discussing interstate commerce, is it acceptable to determine whether the legislation has substantial effects on interstate commerce before determining whether the legislation is regulating channels or instrumentalities of interstate commerce? My reasoning is that the vast majority of examples I've come across have been substantial effects examples, so I'd rather start start with the usual suspect.

 

YES, THAT IS FINE. THERE IS NO MANDATED ORDERING. BUT JUST TO BE CLEAR, IT IS THE REGULATED ACTIVITY THAT MUST HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE, NOT THE LEGISLATION.

QUESTION: Second, and an alternative reason for wanting to start with Substantial Effects test, is can you clarify or distinguish channels and instrumentalities again? Is it fair to say that the channels are the mode of interstate activity and instrumentalities are the means? For example, highway trucking -- the highways are the mode and the trucks are the means?

 

YES, I THINK THAT IS ESSENTIALLY CORRECT, THOUGH THE COURT HAS NEVER USED THOSE PRECISE TERMS. I THINK OF CHANNELS AS THE "RIVERS" THROUGH WHICH COMMERCE FLOWS -- ROADS, NAVIGABLE WATERWAYS, RAILWAYS, TELECOMMUNICATION NETWORKS -- AND INSTRUMENTALITIES AS THE OBJECTS THAT FACILITATE THE COMMERCE -- RAILROAD CARS, AIRPLANES, ROUTERS, SERVERS, AND THE LIKE. BUT, BECAUSE THE COURT HAS NOT DECIDED A CASE INVOLVING ONE OF THESE CATEGORIES SINCE LOPEZ, WE ARE NECESSARILY GUESSING A LITTLE BIT.