Toward a Unitary Commerce Clause: What the Negative Commerce Clause Reveals About the Commerce Power

The Supreme Court’s recent Commerce Clause cases have acknowledged that in order to give full effect to the values of federalism embedded in the Constitution and the related notion that the national government is one of limited powers, some limitation on the commerce power is needed. But without an understanding of why we have the Commerce Clause in the first place, it is difficult to articulate a limitation of the power, much less one that furthers the values of federalism. Unfortunately, the Court’s own precedent in the affirmative Commerce Clause context does not provide doctrinal support for a functionalist approach given that the Court has instead relied on formalistic divides, such as the commercial/noncommercial and activity/inactivity dichotomies. In contrast, the dormant Commerce Clause, or more accurately the negative Commerce Clause, provides a clear statement of the Clause’s purpose, as well as the starting point of a coherent limitation of the commerce power. The doctrine is able to provide this understanding because it has been insulated from the Court’s affirmative Commerce Clause jurisprudence and remains anchored to the Commerce Clause’s purpose. Stated succinctly, the Court has enforced the negative Commerce Clause to achieve the dual interests of interstate commercial harmony and economic union, both of which give doctrinal support to collective action views of federalism. At a minimum, the negative Commerce Clause shows that the Court should and can avoid formalistic categories and instead employ a functionalist inquiry that only permits Congress to regulate commerce among the several states when it furthers the ends of the Commerce Clause.