Commerce Clause Power Research Articles

The Limits of the Interstate Commerce Power: How to Decide the Close Cases

In the many close Commerce Clause cases, the courts must routinely confront, or else ignore, multiple problems of vagueness; of what kinds and degrees of effects on interstate commerce are constitutionally required in a given case; of how to meaningfully distinguish between 'active' and 'passive' involvement with interstate commerce; and of when and how to aggregate minimal effects on interstate commerce into a somehow substantial overall effect. Until the courts arrive at some appropriate clarification of these unresolved constitutional uncertainties, courts are better advised to direct their focus elsewhere when addressing close Commerce Clause power cases. Specifically, courts in such cases should consider whether the case circumstances detectably evoke a sense of the crucial values underlying any fundamental constitutional or human right. Violent bias-motivated attacks present the clearest such cases, and those cases should ordinarily be held to fall within the scope of the Commerce Clause power. Such cases afford the courts an opportunity to at least symbolically or expressively validate, if not to materially advance and promote, national-level policy values of the highest order. On the other hand, if a close Commerce Clause case evidently bears no such detectable relationship to any fundamental constitutional or human right, the courts should normally accommodate instead the values and interests served by federalism, and hold the case to fall outside the scope of the Commerce Clause power.

Judicial Resistance: Mandatory Arbitration as Federal Commandeering

This Article argues that the current doctrine of preempting state substantive law in favor of the Federal Arbitration Act (FAA) violates core federalism principles generally, the Tenth Amendment specifically, and is contrary to well-established anti-commandeering and judicial federalism rules. These authorities are all concerned with a core federalism principle: state sovereignty. The states retained sovereignty when they joined the Union. The Tenth Amendment expressly enshrines this retention. Modern federal court doctrine, which imposes federal arbitration law on the states, encroaches on retained state sovereignty by preempting state substantive law. This is erroneous regardless of whether the FAA was enacted as a rule of federal judicial procedure or as an exercise of Congress’s substantive Commerce Clause power. Encroaching on the state’s retained sovereignty, as the FAA does, violates the fundamental federalism principle and opens a path toward disrupting the power balance between the state and federal governments that Madison considered crucial to protecting individual liberty. When one sovereign comes to dominate in a federalist system, that government begins to lose its federalist character. Consequently, conflict about the FAA is no dry procedural dispute — it is a battle over the republic’s core principles. State courts should continue to serve their federalist role and fight in their corners, and the U.S. Supreme Court should revisit its FAA interpretation.

Taking the Necessary and Proper Clause Seriously; Why Raich Cannot Sustain the Endangered Species Act's Take Prohibition

This article argues that, contrary to decisions from five circuits and commentary from the legal academy, the U.S. Supreme Court’s decision in Gonzales v. Raich does not provide a means to uphold the Endangered Species Act as constitutional under the Commerce or Necessary and Proper Clauses. The Act cannot be upheld under the Commerce Clause without reversing United States v. Lopez and United States v. Morrison because the statute regulates non-economic activities and would require an approach to aggregation and reliance on attenuated effects that would undermine the limits articulated in these cases. Similarly, the Act cannot be upheld under the Necessary and Proper Clause standard discussed in Raich without converting the comprehensive regulatory scheme doctrine into a general police power. Precedent and first principles support a more narrow interpretation of the Raich doctrine than the circuit courts and commentators have assumed – Congress may only regulate activities otherwise beyond its Commerce Clause power if necessary to render a comprehensive regulatory scheme effective as a regulation of commerce. Although Congress may pursue non-commerce ends when exercising its Commerce Clause power, it cannot pursue these ends through means beyond the Commerce Clause. Otherwise Congress would be exercising the police power intentionally denied to it.

The June Surprises: Balls, Strikes, and the Fog of War

At first, few constitutional experts took seriously the argument that the Patient Protection and Affordable Care Act exceeded Congress's power under the commerce clause. The highly political opinions of two federal district judges - carefully chosen by challenging plaintiffs - of no particular distinction did not shake that confidence that the act was constitutional. This disdain for the challengers' arguments was only confirmed when the act was upheld by two highly respected conservative court of appeals judges in two separate circuits. But after the hostile, even mocking questioning of the government's advocate in the Supreme Court by the five Republican-appointed justices, the expectation was that the act would indeed be struck down on that ground. So it came as no surprise when the five opined the act did indeed exceed Congress's commerce clause power. But it came as a great surprise when Chief Justice John Roberts, joined by the four Democrat-appointed justices, ruled that the act could be sustained as an exercise of Congress's taxing power - a ground urged by the government almost as an afterthought. It was further surprising, even shocking, that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito not only wrote a joint opinion on the commerce clause virtually identical to that of their chief, but that in writing it they did not refer to or even acknowledge his opinion. Finally surprising was the fact that Justices Ruth Bader Ginsburg and Stephen Breyer joined the chief in holding that aspects of the act's Medicaid expansion were unconstitutional. This essay ponders and tries to unravel some of these puzzles.

NFIB V. Sibelius: Proportionality in the Exercise of Congressional Power

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anti-coercion limit to the Spending Clause power. When it recognized an anti-coercion limit for ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anti-coercion principle. It also indicates how this new principle can address a long-standing problem with the federal exercise of the Commerce Clause power — the federalization of local crime.Specifically, I argue first that we can best understand the Court’s anti-coercion principle not by parsing the text of its spending power analysis in isolation but by identifying a common strand of principle that the spending power analysis shares with the Court’s analysis of the individual mandate to purchase health care under the federal taxing power. Both analyses suggest a common principle of proportionality for the exercise of federal powers.If that is true for a Medicaid expansion enacted under the spending power and an individual mandate enacted under the taxing power, it also may — and should — be true for a criminal prohibition enacted under the commerce power, the primary source of authority for federal criminal statutes. If so, then the Court could find that Congress exceeds its authority when it imposes more severe sentences than do states for misconduct that is essentially local in nature.

Strategy and Tactics in NFIB v. Sebelius

This article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to Marbury v. Madison, however that common and overused metaphor is misleading. Marbury was a unanimous decision. In contrast to Chief Justice Marshall, Roberts was unable to match his deft long-term strategic maneuvering with effective short-term tactics: he could not forge a majority opinion for most of his positions.Understanding Roberts’s actions as sophisticated judicial strategy reveals much about the composition of his preferences. Although Roberts was clearly pursuing legal policy goals, the fact that he was willing to vote to uphold the individual mandate without a clear majority for his conservative legal innovations suggests that his dominant interest was not doctrinal. Rather, Roberts’s driving aim was to protect the institutional legitimacy of the Court from the appearance of partisan decision-making immediately before a presidential election. Roberts’s evident strategic action is an ideal vehicle for understanding his federalist constitutional agenda, judicial strategy more generally, and its relation to doctrinal development.

Back to the Basics: Restoration of Our Right to Keep and Bear Arms through the National Reciprocity Act of 2011

This note discusses the evolution of state and federal firearms regulation, specifically the states’ role in the governance of firearms control. The note provides an in-depth analysis of the evolution of Second Amendment jurisprudence. The note will focus on the traditional application of the Second Amendment to state and federal government and will analyze the effects of the Heller and McDonald United States Supreme Court decisions on Second Amendment jurisprudence. Additionally, this note provides a detailed analysis of state concealed weapons permit laws. Currently, the United States is divided into three types of concealed carry laws. This note will attempt to explain the major differences of these state regulatory regimes as well as highlight the number of states that participate in each regime. Further, this note will attempt to explain what effects if any, the decisions of Heller and McDonald may have on concealed carry laws, specifically whether it is constitutional for states to place limitations on the right to carry a firearm. Further, this note will describe the most recent incarnation of a National Reciprocity Act and the current controversy associated with the Act including whether a National Right to Carry Reciprocity Act is a proper exercise of Congress’ Commerce Clause power and whether such Act is constitutional.Finally, this note provides an oversight of the interplay between the Commerce Clause and firearms regulation and will analyze whether a National Right to Carry Reciprocity Act is a proper exercise of Congress’ Commerce Clause power and whether such an Act is constitutional. As a final point, this note will discuss whether a National Reciprocity Act a similar type of legislation is an essential means of protection against state infringement of the individual right to keep and bear arms.

Does the Individual Mandate Force Individuals to Buy Insurance?

The Patient Protection and Affordable Care Act includes an individual mandate which penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This Article questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each individual would voluntarily pay. Accordingly, the Article concludes that the premise underlying the debate over the constitutionality of the individual mandate under the Commerce Clause should not be taken for granted.

Perspectives on healthcare reform: High Court to decide constitutionality of individual mandate

The U.S. Supreme Court soon will decide a number of issues regarding the constitutionality of the Patient Protection and Affordable Care Act(1) (PPACA), pursuant to an order published on November 14, 2011. This article will identify four issues (Commerce Clause power, severability, Medicaid expansion, and Anti-Injunction Act) coming before the Court for argument in the spring of 2012. Also, this article identifies and discusses the pro and con arguments pertaining to each issue. Readers who wish to refresh their memories about all the events leading up to the Supreme Court review may refer to the December 2010 monograph of the American Society for Healthcare Risk Management (ASHRM).

Lawyers, Guns and Money: Why the Tiahrt Amendment’s Ban on the Admissibility of ATF Trace Data in State Court Actions Violates the Commerce Clause and the Tenth Amendment

The Tiahrt Amendment provides in relevant part that ATF trace data be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court... This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power.President Obama backed away from a campaign promise to repeal the Amendment, but the Amendment appears vulnerable to constitutional attack. In United States v. Lopez, the Supreme Court found that the Gun-Free School Zones Act (GFSZA) of 1990 exceeded Congress' Commerce Clause power because it was directed at criminal conduct, not commerce, and in Printz v. United States, it found that interim provisions in the Brady Handgun Violence Prevention Act violated the Tenth Amendment because they purported to direct state executive officers to participate in the administration of a federally enacted regulatory scheme. This article argues that the state court evidentiary provisions on the Tiahrt Amendment are not meaningfully different from the GFSZA and the interim Brady provisions, rendering them similarly indefensible under the Commerce Clause and the Tenth Amendment.

LAWYERS, GUNS, AND MONEY: WHY THE TIAHRT AMENDMENT’S BAN ON THE ADMISSIBILITY OF ATF TRACE DATA IN STATE COURT ACTIONS VIOLATES THE COMMERCE CLAUSE AND THE TENTH AMENDMENT

The Tiahrt Amendment provides in relevant part that ATF trace data be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court... This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power.President Obama backed away from a campaign promise to repeal the Amendment, but the Amendment appears vulnerable to constitutional attack. In United States v. Lopez, the Supreme Court found that the Gun-Free School Zones Act (GFSZA) of 1990 exceeded Congress' Commerce Clause power because it was directed at criminal conduct, not commerce, and in Printz v. United States, it found that interim provisions in the Brady Handgun Violence Prevention Act violated the Tenth Amendment because they purported to direct state executive officers to participate in the administration of a federally enacted regulatory scheme. This article argues that the state court evidentiary provisions on the Tiahrt Amendment are not meaningfully different from the GFSZA and the interim Brady provisions, rendering them similarly indefensible under the Commerce Clause and the Tenth Amendment.

A Government of Limited Powers

Roscoe C. Filburn owned small farm in Ohio where he raised poultry, dairy cows, and modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. Agricultural Adjustment Act of 1938 limited wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, Secretary of Agriculture, could not enforce AAA's limits because Congress lacked authority to wheat grown for one's own use. He reasoned: In our federal system, states have authority to legislate except where Constitution constrains them, but federal government may legislate only where Constitution authorizes it. Constitution permits Congress to regulate Commerce with foreign Nations, and among several States and may all Laws which shall be necessary and proper for carrying into Execution its Commerce Clause powers. Mr. Filburn thought that growing and eating wheat on his land were acts in character and that their effects upon interstate commerce are at most 'indirect.' Diane Monson lives in California. She has been growing marijuana she takes to treat substantial medical problems. California Compassionate Use Act of 1996 exempts from criminal liability patients ... who possess or cultivate marijuana for medicinal purposes with recommendation or approval of physician. However, federal Controlled Substances Act classifies marijuana as Schedule I drug. Such drugs have high potential for abuse and no accepted medical use, and it is federal crime to manufacture, distribute, or possess them. Diane Monson (with Angel Raich, another patient using marijuana) went to court to argue that Alberto Gonzales, Attorney General, could not enforce CSA against her or her doctors because Congress lacks authority to marijuana she grows for her own use. Ms. Monson argued that Commerce Clause does not authorize Congress to prohibit local cultivation and use of marijuana in compliance with California law. In 1942, Wichard v. Filburn reached Supreme Court. Justices agreed that AAA was constitutional. They quoted Chief Justice Harlan Stone: The commerce power is not confined in its exercise to regulation of commerce among states. It extends to those activities intrastate which so affect interstate commerce ... as to make regulation of them appropriate means to attainment of legitimate end. Thus, even if appellee's activity be local and though it may not be regarded as commerce, it may still ... be reached by Congress if it exerts substantial economic effect on interstate commerce. Mr. Filburn's wheat affected interstate commerce because it kept him from buying somebody else's wheat. And while his crop was small, its effect, taken together with that of many others similarly situated, is far from trivial. On June 6 of this year, Justices decided six to three that Congress may Ms. Monson's marijuana garden. Justice Stevens said for Court that Commerce Clause was the Framers' response to central problem giving rise to Constitution itself: absence of any federal commerce power under Articles of Confederation. Thus Commerce Clause power is capacious, and case law firmly establishes Congress' power to purely local activities that are part of an economic 'class of activities' that have substantial effect on interstate commerce. principle of stare decisis obliges American courts to decide similar cases similarly. Raich virtually was Wickard. Like farmer in Wickard, respondents are cultivating, for home consumption, fungible commodity for which there is an established, albeit illegal, interstate market. Just as AAA controlled amount of wheat in interstate and foreign commerce, a primary purpose of CSA is to control supply and demand of controlled substances in both lawful and unlawful drug markets. …

How Extra-Copyright Protection of Databases Can be Constitutional

Following the Supreme Court's 1991 Feist decision, intellectual property and Constitutional law scholars have debated whether extra-copyright protection of databases can be established by Congress under its Commerce Clause power. This article presents the problem as one of the gravitational zone of the Commerce Clause versus that of the Copyright and Patent Clause. The article reasons that the Supreme Court decisions in International News Service v. Associated Press, Zacchini v. Scripps-Howard, and the 19th century Trademark Cases all point to the possibility of limited protection of databases under the Commerce Clause. The Article also considers the constitutionality of extra-copyright protection of databases against First Amendment claims as well as pre-emption arguments against state law misappropriation protection of databases.

The Ducks Stop Here? The Environmental Challenge to Federalism

In Solid Waste Association of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Supreme Court considered whether federal regulatory authority reaches isolated wetlands and ponds due to the potential presence of migratory birds. In rejecting such an expansive view of federal authority, the Court's majority underlined its devotion to the federalism principles enunciated in Lopez and other recent cases. The federalist majority further reiterated its support for a canon of statutory construction which holds that federal statutes will not be interpreted to intrude into state matters, such as local land-use control, absent a clear statement by Congress. The dissent argued that the majority ignored Congress' clear intent and, in the process, exposed millions of acres of wetlands to destruction.This paper argues that there is little reason to believe that interstate competition amongst states will produce a race to the bottom in environmental regulation today, if it ever did. Interstate competition is not likely to result in sub-optimal environmental protection, at least when compared with the federal alternative. States will make trade-offs between environmental protection and other values that are most consistent with the values of the people in those states and because inter-jurisdictional competition will promote discovery of preferable environmental protection strategies. The presence of interstate externalities can, in certain circumstances, justify federal environmental regulation. However, the presence of such externalities is often overstated, and the costs of addressing such externalities through federal regulation may well be greater than maintaining state primacy. Insofar as wetlands represent public goods that are undersupplied by states, federal intervention may be justified, but this need not mean federal regulation. Fiscal policy, such as economic incentives or the direct provision of environmental goods, are sufficient. In short, there is little basis for the argument that interstate externalities justify a departure from the Lopez federalism analysis. The SWANCC majority articulated its federalism rationale without addressing environmental concerns. The opinion rested on the broad federalism principles underlying the Court's prior decisions. The interpretive canon that seeks to avoid facing constitutional questions ? in this case whether a given statute exceeds Congress commerce clause power ? serves the same purpose as the federalism doctrine itself: It preserves the preeminence of state authority in the broadest possible sphere. Where Congress has been ambiguous about the extent to which it is asserting federal authority, such a canon will be sufficient to advance the aims of federalism. This will not be true in all cases, however. There are other environmental statutes, such as the Endangered Species Act, which assert equally far-reaching federal authority with less statutory ambiguity. In such cases, the Court will need to confront the arguments against federalism head-on to preserve inter-jurisdictional competition amongst the states.

The Vagueness of Partial-Birth Abortion Bans: Deconstruction or Destruction?

' H.R. 1122, 105th Cong. ? 2 (1997). Congress has invoked the Commerce Clause power to justify its authority to regulate partial-birth abortions. See id. ? 2(a). For an interesting discussion of whether Congress has the power to regulate partial-birth abortions under the Commerce Clause in light of the Supreme Court's decision to curtail the scope of the Commerce Clause in United States v. Lopez, see David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 CONN. L. REV. 59 (1997) (discussing United States v. Lopez, 514 U.S. 549 (1995)). 2 See H.R. 1122, ? 2(a). All of the partial-birth abortion bans, except the Missouri ban, contain a provision that the pregnant woman upon whom the procedure is performed may not be prosecuted for conspiracy to violate the statute. See infra note 3. See also H.R. 1122, ? 2(a). 3 The following states have enacted bans: Alabama (ALA. CODE ? 26-23-2 to -4 (Supp. 1998)); Alaska (ALASKA STAT. ? 18.16.050 (Michie 1998)); Arizona (ARIZ. REV. STAT. ANN. ? 13-3603.01 (West Supp. 1998)); Arkansas (ARK. CODE ANN. ? 5-61-202 to -203 (Michie 1997)); Florida (FLA. STAT. ANN. ? 390.011, -.0111 (West Supp. 1999)); Georgia (GA. CODE ANN. ? 16-12-144 (1999)); Idaho (IDAHO CODE ? 18-613 (Supp. 1999)); Illinois (720 ILL. COMP. STAT. 513/5-5, -10, -20 (West 1998)); Indiana (IND. CODE ANN. ?? 16-18-2-267.5, 16-34-2-1(b) (West Supp. 1998)); Iowa (IOWA CODE ANN. ? 707.8A (West Supp. 1999)); Kansas (1998 Kan. Sess. Laws 142); Kentucky (KY. REV. STAT. ANN. ? 311.720, -.765, -.990 (Michie Supp. 1998)); Louisiana (LA. REV. STAT. ANN ? 14:32.9 (West Supp. 1999)); Michigan (MICH. COMP. LAws ? 333.17016 (West Supp. 1999)); Mississippi (MISS. CODE ANN. ? 41-41-71, -73 (1999)); Missouri (1999 Mo. Legis. Serv. 427 (West)); Montana (MONT. CODE ANN. ? 50-20-401 (1997)); Nebraska (NEB. REV. STAT. ? 28326, -328 (Supp. 1998)); NewJersey (N.J. STAT. ANN. ? 2A:65A-6 (West Supp. 1999)); North Dakota (N.D. CENT. CODE ? 14-02.6-01 to -03 (1999)); Ohio (OHIO REV. CODE ANN. ? 2919.15

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two important aspects of the Eleventh Amendment, which generally protects statesfrom being sued infederal courts. First, the Court held that the Congress has power to abrogate states' immunityfrom suit-to subject states to suits infederal courts for damages-under Congress' expansive commerce-clause power. Second, the Court made clear that such abrogation would be found only where the text of the statute itself, as distinct from its legislative history, clearly and specifically so provided. This article describes these decisions, and analyzes some of their implications for judicial federalism.

Supreme Court Decisions on the Commerce Clause and State Taxing Power, 1910-1914

Supreme Court Decisions on the Commerce Clause and State Taxing Power, 1910-1914

Supreme Court Decisions on the Commerce Clause and State Police Power, 1910-1914. II. State Power after Congressional Action

Supreme Court Decisions on the Commerce Clause and State Police Power, 1910-1914. II. State Power after Congressional Action

Supreme Court Decisions on the Commerce Clause and State Police Power, 1910-1914 I

Supreme Court Decisions on the Commerce Clause and State Police Power, 1910-1914 I