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Inactivity, Deregulation, and the Commerce Clause: A Thought Experiment

22 Pages Posted: 9 Aug 2017  

David M. Driesen

Syracuse University College of Law

Date Written: August 7, 2017

Abstract

This essay examines an unsuspected parallel between the regulation of inactivity and deregulation of activity under the Commerce Clause. The substantial effects test justifying most federal regulation of interstate commerce does not by its terms authorize either regulation of inactivity or deregulation of activity. For that test only authorizes regulation of activities.

The courts, however, have not treated regulation of inactivity and deregulation of activity alike. The Supreme Court has disapproved of regulation of inactivity as incompatible with its articulation of the substantial effects test. The courts, however, have upheld laws deregulating activity without noticing their incompatibility with the Supreme Court’s articulation of the substantial effects test.

Juxtaposing these two types of formalist violations of the substantial effects test sets the stage for a more neutral evaluation of the limits of formalism under the Commerce Clause than one can obtain through analysis of regulation of inactivity alone. While deregulation and regulation formally flunk the substantial effects test, both may advance the Commerce Clause’s most fundamental purpose — the promotion of interstate commerce. This essay therefore suggests some less formalist approaches to addressing the potential for inappropriate invasion of states’ rights through deregulation and of individual liberty through regulation of inactivity.

Suggested Citation

Driesen, David M., Inactivity, Deregulation, and the Commerce Clause: A Thought Experiment (August 7, 2017). Wake Forest Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3014767

David M. Driesen (Contact Author)

Syracuse University College of Law ( email )

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