Commerce Clause

• Currents In Commerce Clause Scholarship Since Lopez: A Survey

Introduction I. An Overview Of Commerce Clause Jurisprudence A. The Limited Scope Of The Federal Commerce Power Before The New Deal B. The Expansive Scope Of The Commerce Power After The New Deal C. Lopez, Morrison, And Limits On The Commerce Power II. Survey Of Post-Lopez Commerce Clause Scholarship A. The Meaning Of The Text Of The Commerce Clause 1. General Explorations Of The Commerce Clause As An Enumerated Power 2. Exploring Original Sources For The Commerce Clause's Meaning a. A Functional Interpretation Of The Commerce Clause Based On The Sixth Virginia Resolution b. The Original Public Meaning Of The Commerce Clause: An In- Depth Debate i. Opening Shot: Nelson And Pushaw ii. Return Fire: Barnett 2001 iii. Counter-Attack: Nelson And Pushaw 2002 iv. Flanking Maneuver: Barnett 200...

• Capital University Law Review
• Nbr. 32-3, April 2004

• The Market-Participant Exception And The Dormant Foreign Commerce Clause

The Market-Participant Exception: A Primer II. The Market-Participant Exception Applied To The Foreign Commerce Clause A. History B. Interference with Federal Foreign Relations Powers 1. The Framers` View 2. Congress`s Foreign Affairs Power 3. The President`s Foreign Relations Power C. Failures of the Traditional Market-Participant Justifications 1. Fairness 2. Federalism 3. Participation versus Regulation 4. Textualism 5. The Supremacy Clause and Institutional Concerns III. A Problem Of Consistency? IV. The Future Conclusion

• Cardozo Public Law, Policy and Ethics Journal
• Nbr. V-2, April 2007

• Commerce Clause at Center of Battle Over Health Reform

Congress has used the Constitution's Commerce Clause to fight prostitution and domestic violence, to break monopolies and to combat segregation - but its biggest test could come over the Obama administration's claim that it can compel individuals to buy health insurance. A federal judge earlier this month struck down part of the new health care law on the grounds that Congress had stretched the Commerce Clause too far. Other federal courts, though, have upheld the law, and its fate is certain to be decided eventually by the Supreme Court.

• The Washington Times
• December 30, 2010

• Congressional Power to Regulate Noncommercial Activity Overseas: Interstate Commerce Clause Precedent Indicates Constitutional Limitations On Foreign Commerce Clause Authority

Although the US Supreme Court has not yet ruled any statutes criminalizing the conduct of Americans overseas unconstitutional under the Foreign Commerce Clause, three US Courts of Appeals decisions use the concept of enumerated powers-important in US Supreme Court decisions that invalidate statutes grounded in the Interstate Commerce Clause - to suggest limitations on Congress's Foreign Commerce Clause power. In two decisions, the U.S. Courts of Appeals for the Fifth and Ninth Circuits employed the US Supreme Court's Interstate Commerce Clause framework when analyzing statutes under the Foreign Commerce Clause. In so doing, these courts suggest that Foreign Commerce Clause power is not plenary-the constitutional concerns driving the US Supreme Court to recognize limitations on Congress'...

• Washington Law Review
• Vol. 81 Nbr. 3, August 2006

• The Federalist Papers, the Commerce Clause, and federal tort reform.

In the modern era, Congress has enacted many federal "tort reform" statutes (2) that supersede contrary state laws, and judicial precedents leave litt...

• Suffolk University Law Review
• Vol. 45 Nbr. 2, March 2012

• Where United Haulers Might Take Us: The Future of the State-Self-Promotion Exception to the Dormant Commerce Clause Rule

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-self-promotion exception, which receives its first extended treatment in this Article. I begin by identifying the many contexts in which this exception may take hold, touching in th...

• Iowa Law Review
• Nbr. 95-2, February 2010

• Facial Challenges, Legislative Purpose, and the Commerce Clause

Over the past decade or so, the Supreme Court has issued an extraordinary and highly controversial series of decisions concerning the scope of Congress's power. Yet beneath the surface of the debate over the federalism cases lies a parallel dispute that has received far less scholarly notice. This dispute concerns the proper mode of judicial review in cases testing the scope of congressional power. The uncertainty is greatest in the Commerce Clause area, where the Court's recent cases-including its 2005 decision in Gonzales v. Raich-have shown a strong preference for facial challenges, in sharp contrast to the Court's traditional inclination toward as-applied review. This Article explores several possible rationales for the Court's use of facial review in Commerce Clause cases and concl...

• Iowa Law Review
• Nbr. 92-1, November 2006

• Can the tolling of statutes of limitations based on the defendant's absence from the state ever be consistent with the Commerce Clause?

Most states have legislation that tolls applicable statutes of limitations during the time a defendant is absent from the state. (1) In 1988, the Unit...

• Missouri Law Review
• Vol. 76 Nbr. 2, March 2011

• PPACA In The Federal Courts: Constitutional Within The Commerce Clause?

Several lawsuits have challenged the constitutionality of the Patient Protection and Affordable Care Act of 2010 ("PPACA"). Most of them focus on the ...

• Mondaq Business Briefing
• United States Law Articles in English

• The Dormant Commerce Clause: Adopting a New Standard and a Return to Principle

With the advent of triple tax exemption from federal, state, and city taxes, municipal bonds are a $2.3 trillion market.7 The tax exemption provides incentive for residents to invest in municipal bonds and promote local projects.8 Their increasing prevalence to raise funds for local needs led to special tax treatment at both the federal and state levels.9 Kentucky Revised Statutes govern individual state income taxes on net income, which is determined after deductions from an individual's adjusted gross income.10 Kentucky's statute includes interest income derived from obligations of sister states and political subdivisions thereof in its definition of adjusted gross income, but importantly, not interest income from obligations of Kentucky and its political subdivisions.11 The statute, ...

• The William and Mary Bill of Rights Journal
• Vol. 17 Nbr. 4, May 2009