Critics often assert that the Supreme Court has no coherent, consistent doctrine regarding the federal power under the Commerce Clause. However, this article contends that the Court has stated a consistent, traditional Commerce Clause doctrine, which can be used to harmonize the Lopez and Morrison opinions. This doctrine has been hidden by the modern result-driven commerce clause debate that focuses on three elements: Congress' power to regulate the use of channels of interstate commerce, the instrumentalities of interstate commerce, and activity having a substantial effect on interstate commerce. By focusing on these three elements, the Court's Commerce Clause analysis becomes weak and problematic, and is only resolved using the doctrine of incidental powers, which relies on a textual reading of the Necessary and Proper Clause. Established through reviving an accurate reading of McCulloch and applied to the current three-element test, this article's solution allows for a balancing test instead of a rigid formula. The article concludes by advancing an argument for federalism.
John T. Valauri,
The Clothes Have No Emperor, or, Cabining the Commerce Clause,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol41/iss1/17