Does Commerce Clause Review Have Perverse Effects?

Abstract

There is a crucial empirical assumption that pervades the debate about federal judicial review of federal statutes under the affirmative Commerce Clause. The assumption, indulged by many different camps in the debate, is that Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states. This essay argues that, on equally plausible empirical assumptions, Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization have chosen a course of action with potentially perverse effects. The essay concludes by examining how the possibility of perverse effects should affect the decisional calculus of judges in each of the various camps.