Why is Congress Still Regulating Noncommercial Activity?

Abstract

This essay considers the Commerce Clause broader regulatory scheme doctrine. Lower courts have adopted this doctrine, mentioned twice in United States v. Lopez, to uphold a wide range of federal noncommercial regulation from statutes that cover drug, gun, and child pornography possession to environmental and endangered species regulations. As a result, Lopez and United States v. Morrison thus far have not turned out to be the landmark cases they first seemed. Despite the central role the broader scheme doctrine has played in defining post-Lopez Commerce Clause power in lower court decisions, commentators surprisingly have overlooked it almost entirely. The one academic article to focus on the doctrine correctly argues that it creates perverse legislative incentives for Congress but makes only that limited contribution. As broader scheme cases work their way toward the Supreme Court, the oversight is especially significant.

This essay provides the first thorough examination of the broader scheme doctrine, argues that the prevailing interpretation by lower courts is misguided, and proposes a new framework for analyzing broader scheme questions. The analysis reveals that lower courts have upheld noncommercial activity by mistakenly relying on Wickard v. Filburn in their interpretation of the broader scheme doctrine. Instead, the broader scheme doctrine finds its roots in cases like Maryland v. Wirtz and Hodel v. Virginia Surface Mining & Reclamation Association. I propose a new framework for analyzing broader scheme questions based on the Wirtz and Hodel enterprise theory. This framework adheres to Lopez's substantive limits against federal regulation of purely local, noncommercial activity by permitting Congress to regulate noncommercial activity only when performed as part of an economic enterprise.

Keywords: Commerce clause, constitutional law, broader scheme

JEL Classification: K19, K10