A Commerce Clause Standard for the New Millennium: 'Yes' to Broad Congressional Control Over Commercial Transactions; 'No' to Federal Legislation on Social and Cultural Issues

Abstract:     
In a 1999 Iowa Law Review article co-authored with Professor Robert J. Pushaw, Jr., Professor Nelson employed a “Neo-federalist” methodology in analyzing the Commerce Clause of the U.S. Constitution. In this prior article, Professors Nelson and Pushaw developed a Commerce Clause test that requires that (1) Congress be regulating “commerce” and (2) the activity at issue has a commercial impact in more than one state. Nelson and Pushaw also accepted that Congress may protect the commerce it regulations by prohibiting noneconomic crimes or torts that interfere with or threaten such commerce.

The current article applies this proposed standard to existing Supreme Court Commerce Clause decisions. It also examines the impact of the standard on existing federal legislation that has not yet been tested by the Supreme Court, such as drug enforcement, environmental regulation, family law and other criminal statutes. In addition, it evaluates the impact of the standard on potential future federal legislation. Then, it advocates for a more active Commerce Clause role for Congress in dealing with commercial transactions and a more limited role in the social and cultural sphere. Finally, in so doing, it suggests a modified focus for the National Conference of Commissioners on Uniform Laws during the next millennium.

Number of Pages in PDF File: 40

Keywords: Commerce Clause, Constitutional law, federalism

JEL Classification: K19, K29, K39

Accepted Paper Series