The Scope of the Commerce Clause After Morrison

This essay, a contribution to a fall symposium at the Oklahoma City University law school, examines the Supreme Court's Commerce Clause jurisprudence in light of the Supreme Court's decision last Term in United States v. Morrison. Morrison found unconstitutional the Violence Against Women Act because its reach exceeded that permitted to the federal government under Article I, Section 8 of the Constitution. We argue that the Court's restrictions on the commerce power, while certainly a departure from previous directions in the federalism area, alone present no drastic or revolutionary limitations on the federal government's ability to achieve its policies. Some might fear that Morrison will prevent Congress from using the Commerce Clause to reach noncommercial, intrastate activity. Other powers, however, such as the Spending and Taxing Clauses, provide Congress with alternative opportunities to reach beyond the new restrictions on the Commerce Clause. Even the Court's current pronouncements on the Commerce Clause provide Congress with ample power to reach a great deal of conduct. Due to the national integration of the economy and society, the channels and instrumentalities prongs of the Commerce Clause provide substantial authority to establish uniform federal rules over a vast amount of noncommercial conduct. Even if Congress wishes to intrude even further into intrastate activity, the Court's effort to impose the barrier at economic activity may prove sufficiently permeable to allow federal jurisdiction over most things that Congress would want to regulate. If the Court intends to impose serious restraints on Congress, its recent efforts in the Commerce Clause area can only be the early steps.