This Court has identified three broad categories of activity that Congress may regulate under its commerce power, the second of which comprises "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." United States v. Lopez, 514 U.S. 549, 558–59 (1995). Some courts take a categorical approach to this category, as the Fifth Circuit did here: phones just are instrumentalities of interstate commerce. United States v. Elkins, 161 F.4th 899, 912 (2025). In the Tenth Circuit, however, something that can be an instrumentality, like a motor vehicle, is not necessarily one. United States v. Chavarria, 140 F.4th 1257, 1265 (10th Cir. 2025). It must actually "affect interstate commerce in some way for its use to warrant federal interest." Id.

Is the Fifth Circuit's categorical approach to instrumentalities of interstate commerce constitutional?

Whether the Fifth Circuit's categorical approach to instrumentalities of interstate commerce—treating certain items as inherently regulable without requiring proof of actual effect on interstate commerce—is consistent with the Commerce Clause as interpreted in United States v. Lopez