A New Approach to Congressional Power: Revisiting the Legal Tender Cases

Abstract:     
This Article proposes a new doctrinal test for assesing the scope of Congress's authority under the Commerce Clause and Section 5 of the Fourteenth Amendment. To clarify the muddled state of the law following the Supreme Court's decision in Gonzales v. Raich, the analysis reviews the precedents and shows that the operative standard in implied power disputes comes from the three Legal Tender Cases and not, as is commonly supposed, from McCulloch v. Maryland. Two of these cases on the validity of paper money set forth approaches that are invoked by the Court today. One says that the Justices should defer to congressional judgments about the affirmative scope of its power absent extraordinary circumstances. The other says the Court should balance the importance of a federal interest in regulation against any countervailing state interests.

The third framework discussed in the Legal Tender Cases, however, is not part of the current debate. That test holds that an exercise of federal power outside the core of an enumerated end should receive heightened scrutiny only when it is in the vicinity of a specific constitutional prohibition (i.e., when there is a colorable claim that a concrete right is affected). As the Article explains, this test offers a compromise that can protect important structural and textual principles without giving the Court unbounded discretion to displace national action.

Accepted Paper Series