Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action
Siegel, Neil S., Duke Law Journal
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.
--Chief Justice Rehnquist (1)
This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause.
My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. These approaches are unworkable in light of the frequency with which the federal government and the states regulate the same subject matter in our world of largely overlapping federal and state legislative jurisdiction.
The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. These problems are evident in the way that some federal judges invoked regulatory custom in litigation over the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act. The areas of "health insurance" and "health care" are not of exclusive state concern, and it is impossible to lose--or to win--a competition requiring skillful lawyers or judges to describe them as more state than federal, or more federal than state. Nor is it most important what the answer is.
More promising are the approaches that view congressional authority as turning on either commercial activity or collective action problems facing the states. My second claim is that these two approaches have advantages and disadvantages, and that the choice between them exemplifies the more general tension between applying rules and applying their background justifications. I have previously defended a collective action approach to Article I, Section 8. My primary purpose in this Essay is to clarify the jurisprudential stakes in adopting one method or the other and to identify the problems that advocates of each approach must address.
TABLE OF CONTENTS Introduction I. Theory: The Primary Justification for the Commerce Clause II. Doctrine: Custom and the Commerce Clause A. The Unworkability of Custom B. The Undesirability of Custom III. Doctrine: Commercial Activity and Collective Action A. Commercial Activity Versus Collective Action B. A Return to Custom? Conclusion
Congress possesses the authority "[t]o regulate Commerce ... among the several States" (2) primarily so that it can solve collective action problems like the ones that the states faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce. (3) Most of the eighteen clauses in Article I, Section 8 of the United States Constitution likewise give Congress the authority to solve multistate collective action problems. (4) The commerce power in particular, however, possesses perhaps the greatest potential to collapse the "distinction between what is truly national and what is truly local." (5) There are three main judicial strategies for maintaining such a distinction in Commerce Clause cases. (6)
One historic strategy, which has few adherents today, is to invoke what is asserted to be the customary allocation of regulatory authority between the federal government and the states. Most often, this approach is formulated in a way that is akin to "dual federalism," which died in 1937 because it proved unable to define unique and exclusive spheres of federal and state legislative jurisdiction. …