Unidimensional Federalism: Power and Perspective in Commerce Clause Adjudication

Abstract:     
Since 1995, the United States Supreme Court has applied a new form of rigorous judicial scrutiny in assessing the constitutional limits of the Commerce Clause, a provision that long has functioned as the central authorization of congressional power. As critics on and off the bench have noted, the Court has advanced its conception of federalism by requiring that the regulated activity itself be economic or commercial in nature. A crucial aspect of the Court's approach that has received less attention is the prior step of selecting the relevant activity for constitutional analysis. Legislation can be viewed from a variety of different perspectives, and the choice of vantage points can be critical in determining the requisite commercial nexus. In the wake of the New Deal, the Court upheld legislation if it had a commercial connection when viewed from any perspective. This Article argues that in a break from a half century of settled jurisprudence, the Court recently has insisted on selecting a single perspective as determinative. This approach, which we term "unidimensional," relocates substantial discretion from Congress to the judiciary. Drawing on the insights of recent scholarship on statutory interpretation, we illuminate the flaws in the Court's unidimensional approach. Legislation implicates multiple motives, targets, beneficiaries, and effects. For the Court to pick out a single element as dispositive constitutes a groundless form of reductionism. Here, as in other aspects of its recent jurisprudence, the Court focuses on the common-law rights holder as the fulcrum of analysis. This framework tilts the doctrine against regulation, as it inevitably casts the state as a suspect interloper. Lower court cases evidence the confusion that the Court's narrow commercial activity analysis has generated. In place of this flawed, unidimensional approach, we offer a "legislativist" framework for Commerce Clause cases. Under the legislativist method, the text of the legislation guides the judicial identification of the relevant activities for purposes of Commerce Clause scrutiny. This approach retains meaningful judicial oversight, while avoiding the arbitrary usurpation of congressional authority inherent in the Court's current jurisprudence.

Keywords: constitutional law, federalism, regulation, statutory construction

Accepted Paper Series