Posted by Jonathan Adler:
Senator Feinstein and the Commerce Clause:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247629621
Senator Dianne Feinstein [1]asked Judge Sotomayor about the federal
government's Commerce Clause power today.
One question on the commerce clause in the Constitution. That
clause, as you well know, is used to pass laws in a variety of
contexts, from protecting schools from guns to highway safety to
laws on violent crime, child pornography, laws to prevent
discrimination and to protect the environment, to name just a few
examples.
When I questioned now Chief Justice Roberts, I talked about how,
for 60 years, the court did not strike down a single federal law
for exceeding congressional power under the commerce clause.
In the last decade, however, the court has changed its
interpretation of the commerce clause and struck down more than
three dozen cases. My question to the chief justice and now to you
is: do you agree with the direction the Supreme Court has moved in
more narrowly, interpreting congressional authority to enact laws
under the commerce clause?
(emphasis added)
Either Senator Feinstein misspoke, or she needs better staff. In the
last decade, the Supreme Court has only struck down a single federal
statute for exceeding the scope of the federal commerce clause power.
In United States v. Morrison (2000), the Court invalidated portions of
the Violence Against Women Act. Given her reference to "protecting
schools," I assume she meant to include the Court's 1995 decision in
United States v. Lopez, but that only increases the number of cases to
two in which the Court found Congress exceeded the scope of its
Commerce Clause power.
I've spent some time pondering what Senator Feinstein could have meant
when she said the Supreme Court had "struck down more than three dozen
cases" under the Commerce Clause. Adding up all of the cases in which
the Court found statutes exceeded all of the federal government's
enumerated powers, including the sovereign immunity cases, the
commandeering cases, and the 14th Amendment cases, in the last twenty
years still doesn't get us to the three-dozen-plus cases Feinstein
claimed. Add in the federalism-related constitutional avoidance cases,
and we're still a ways off.
Maybe she meant to include dormant commerce clause cases as well -- I
haven't counted those -- but that would have been an odd choice both
because a) dormant commerce clause cases limit state, rather than
federal, power; b) Congress may overrule dormant commerce clause
decisions, and c) there are reasons to suspect the Court is becoming
less aggressive at policing the dormant commerce clause. So I don't
think she meant to include these cases, and even if she had, I still
don't think it would get us to 36 cases in the past ten years. What am
I missing?
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071401687_pf.html
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