Collective action federalism: A general theory of article I, section 8

Stanford Law Review

Volumn 63, Issue 1, 2010, Pages 115-186

  Cooter, Robert D ^a   Siegel, Neil S ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b DUKE UNIVERSITY   (United States)

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EID: 78650413779     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (242)

1. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 206 (Francis Bowen ed., Henry Reeve trans., Cambridge, Sever & Francis 1862).
2. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 131-32 (Max Farrand ed., rev. ed. 1966).
3. See infra Part I.A.2.
4. United States v. Morrison, 529 U.S. 598, 617-18 (2000). The Commerce Clause is Clause 3 of Article I, Section 8. The Court has, at times, also imposed federalism-based limits on the General Welfare Clause, which is Clause 1 of Article I, Section 8.
5. See, e.g., PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 447-49 (5th ed. 2006).
6. For a discussion of competing views of the meaning of the word "Commerce" in Clause 3, see infra notes 177, 242, and accompanying text, contrasting the modern Court's "economic" conception with the broader, social conception of Akhil Amar and Jack Balkin.
7. As Donald Regan has written about the Commerce Clause in particular, "when we are trying to decide whether some federal law or program can be justified under the commerce power, we should ask ourselves the question, 'Is there some reason the federal government must be able to do this, some reason why we cannot leave the matter to the states?'" Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554, 555 (1995). Regan's approach to the commerce power shares some important similarities with ours, although he does not purport to offer an integrated theoretical account of Article I, Section 8 as a whole. See also Ann Althouse, Enforcing Federalism After United States v. Lopez, 38 ARIZ. L. REV. 793, 817(1996) ("We should begin a reconstruction of Commerce Clause jurisprudence that looks deeply into why it is good for some matters to be governed by a uniform federal standard, why it is good for some things to remain under the control of the various states, and what effect these choices will have on the federal courts."). See generally Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 781-84 (1995) (stressing the importance of federalism, including the problem of positive and negative externalities in the absence of a national government).
8. This Article's approach to the Commerce Clause remarkably resembles an important paper by Jack Balkin that we recently discovered. See Jack M. Balkin, Commerce, 109 MICH. L. REV. 1 (2010). Whereas Balkin is especially concerned with the original public meaning of the Commerce Clause, we are especially concerned with the analysis of collective action problems in Article I, Section 8 as a whole and their connection to the general welfare. Notwithstanding those differences in emphasis, Balkin and we entirely agree that collective action problems are the key to understanding the scope of the commerce power, and that this insight is evident in the structure of the Constitution, in the historical discussions that led to its drafting and ratification, in much judicial precedent, and in a sound consequentialist analysis of the optimal division of authority in a federal system.
9. 297 U.S. 1, 64-66 (1936). For a discussion of Butler, see infra Part I.B.1.
10. For a discussion of the standard approaches to constitutional interpretation, see infra Part III.D.
11. See, e.g., JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 24-28, 47-48, 102-08, 167-68, 188-89 (1996) (discussing various failures of the Articles of Confederation). Almost all of the first thirty-six essays in The Federalist are devoted to the various inadequacies of the Articles.
12. For a nice summary, see Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 616-23 (1999).
13. The relevant language in the Articles read as follows: All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled. ARTICLES OF CONFEDERATION OF 1781, art. VIII.
14. Akhil Amar explains: Along with other federal organs, the navy could be directly financed by new federal imposts, duties, and other taxes imposed on individuals from every region-individuals who would bedirectly represented in the Congress that would set general tax rates and approve the overall defense budget. This new and readily enforceable revenue system would cure the collectiveaction problems that had doomed the Articles' requisition regime, which lacked strong mechanisms to sanction shirking states. (State self-interest alone had failed to guarantee adequate financial support; continental defense was a classic shared good whose benefits radiated beyond the contributing states.) AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 46 (2005).
15. JAMES MADISON, Vices of the Political System of the United States, in JAMES MADISON: WRITINGS 69, 78-79 (Jack N. Rakove ed., 1999).
16. See RAKOVE, supra note 11, at 46.
17. MADISON, supra note 15, at 69-73. Madison also listed the failure of the people to ratify the Articles of Confederation. Id. at 73-74. He further urged that "[i]n developing the evils which viciate the political system of the U.S. it is proper to include those which are found within the States individually, as well as those which directly affect the States collectively, since the former class have an indirect influence on the general malady and must not be overlooked in forming a compleat remedy." Id. at 74. Focusing on the "multiplicity," "mutability," and "injustice" of state laws, id. at 74-75, Madison then articulated a version of what would later become known as his theory of the extended republic, id. at 76-80. Historical scholarship has shown that the Framers were most concerned about the various collective action problems confronting the states, not about the problems internal to the states that preoccupied Madison. See AMAR, supra note 14, at 44 ("The central argument for a dramatically different and more perfect union was not that it would protect Virginians from the Virginia legislature [as Madison insisted], but rather that it would protect Virginia from foreign nations and sister states, and in turn protect these sisters from Virginia."). See generally Kramer, supra note 12, at 637-71 (developing this point in the context of arguing that the other Framers did not understand Madison's theory of the extended republic).
18. MADISON, supra note 15, at 71.
19. MADISON, supra note 15; see also Kramer, supra note 12, at 619 ("Federal authority to act independently of the states was also called for in other areas deemed properly subject to federal supervision by virtue of their interstate aspects, such as bankruptcy, intellectual property, and immigration and naturalization.").
20. Kramer, supra note 12, at 619.
21. Kramer, supra note 12 at 619-20.
22. As Akhil Amar explains, "Federal power over genuinely interstate and international affairs lay at the heart of the plan approved by the Philadelphia delegates." AMAR, supra note 14, at 108 n.*.
23. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 131-32.
24. It is not clear how each part of the quoted language fits with the other parts. We perceive redundancy, as did Bedford. Regan explains that "[t]he Framers themselves were unclear about the precise reach and interrelations of the various clauses." Regan, supra note 7, at 570 n.70.
25. See RAKOVE, supra note 11, at 59. The Virginia Plan incorporated most of James Madison's pre-Convention assessment of what ailed America. It formed the basis of the Convention's first two weeks of debate. Id.
26. Robert L. Stern, That Commerce Which Concerns More States than One, 47 HARV. L. REV. 1335, 1340 (1934).
27. Rakove concludes from the fact that the Committee of Detail went unchallenged on this matter that it "was only complying with the general expectations of the Convention." RAKOVE, supra note 11, at 178. According to Rakove, the Committee was attempting "to identify particular areas of governance where there were 'general Interests of the Union,' where the states were 'separately incompetent,' or where state legislation could disrupt the national 'Harmony.'" Id.
28. Stern, supra note 26, at 1340; see also Regan, supra note 7, at 556 ("[T]here is no reason to think the Committee of Detail was rejecting the spirit of the Resolution when they replaced it with an enumeration.").
29. Stern analogized a dysfunctional economy to an ailing human body in order to underscore the magnitude of the collective action problem facing the states during the Great Depression: In the human organism the unity of the system which makes it impossible to treat any part of the body as entirely separate from the rest also makes it possible to treat and cure the body as a whole. Does the commerce clause, which is the integrating factor in the union of states, likewise permit the economic treatment of the union as a whole-or, by merely devitalizing the separate units without substituting any positive central authority, has it become the agency which will bring about their ruin? Stern, supra note 26, at 1336-37. Needless to say, Stern was asking a rhetorical question: "The Court can avoid the possibility of placing the nation in a defenseless position . . . by allowing federal control of those business transactions which occur in and concern more states than one and which the individual states are separately incompetent to control." Id. At 1366. He even noted the inclusion of the "general welfare" language in the Preamble and Clause 1 of Article I, Section 8, arguing that this placement demonstrated the view of the Convention "that the Constitution would serve and should be construed 'to promote the general welfare' and not to perpetuate a union of states powerless when power is needed most." Id. at 1342. Stern intuitively grasped some of the key economic concepts that we use throughout this Article.
30. BREST ET AL., supra note 5, at 556. Note, however, that there is an important difference between effects and external effects. Wilson's language arguably was not as precise as it should have been.
31. Chief Justice John Marshall would later reason similarly to Wilson. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824) ("The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally . . . .").
32. BREST ET AL., supra note 5, at 176.
33. BREST ET AL., supra note 5. at 450.
34. See ALEXANDER HAMILTON, REPORT ON THE SUBJECT OF MANUFACTURES (1791), reprinted in 10 THE PAPERS OF ALEXANDER HAMILTON 230, 302-04 (Harold C. Syrett ed., 1966) (arguing that the General Welfare Clause confers independent authority to tax and spend).
35. See, e.g., United States v. Butler, 297 U.S. 1, 65-66 (1936) (discussing Madison's restrictive view of the General Welfare Clause and Hamilton's expansive view); THE FEDERALIST NO. 41 (James Madison) (arguing that the General Welfare Clause confers authority to tax and spend only for purposes indicated by the enumerated powers listed in Article I, Section 8).
36. BREST ET AL., supra note 5, at 82.
37. BREST ET AL., supra note 5 at 83. Madison continued: "[I]t does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States." Id. 38. Id. at 84.
38. See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS 1829-1861, at 10-12 (2005). 40. Id. at 25.
39. BREST ET AL., supra note 5, at 451 (discussing Michelle Dauber Landis, The Sympathetic State, 23 LAW & HIST. REV. 387, 403-06 (2005)).
40. BREST ET AL., supra note 5, at 451 (discussing Michelle Dauber Landis, The Sympathetic State, 23 LAW & HIST. REV. 387, 403-06 (2005)).
41. BREST ET AL., supra note 5, at 452-53.
42. The Court upheld federal land and franchise grants for interstate railroads in 1888, but relied on the Commerce Clause in doing so. See California v. Cent. Pac. R.R. Co., 127. U.S. 1, 39-41 (1888).
43. 297 U.S. 1, 66 (1936).
44. 301 U.S. 548 (1937).
45. 301 U.S. 619 (1937).
46. Butler, 297 U.S. at 64.
47. Butler, 297 U.S. at (quoting 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 907 (Melville M. Bigelow ed., Little, Brown & Co. 5th ed. 1905) (1833)).
48. Madison wrote: To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress. BREST ET AL., supra note 5, at 83 (quoting James Madison, Veto Message (Mar. 3, 1817), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 584-85(James Richardson ed., 1897)).
49. Butler, 297 U.S. at 63-64, 68. This part of the Butler Court's holding is no longer good law. See United States v. Darby, 312 U.S. 100, 108-10, 113-24 (1941) (upholding the Fair Labor Standards Act of 1938, which prohibited the shipment in interstate commerce of goods produced by employees paid less than the mandated minimum wage).
50. Butler, 297 U.S. at 63.
51. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS
52. INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 203 (2009) (quoting Isidor Loeb, Constitutional Interpretation in a Transitional Period, 21 ST. LOUIS L. REV. 95, 105 (1936)).
53. U.S. CONST. art. I, § 8, cl. 3.
54. 1 7 U.S. (4 Wheat.) 316, 424, 436 (1819) (holding that Congress had Section 8 authority to create the Second Bank of the United States and that the states were prohibited by the Constitution from taxing the Bank). Although Section 8 neither mentions a bank nor empowers Congress to charter corporations, Chief Justice Marshall reasoned for the Court that the Bank was an "appropriate" means for Congress to employ in carrying out several of its enumerated powers: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id. At 421.
55. 22 U.S. (9 Wheat.) 1, 193-97 (1824).
56. 22 U.S. (9 Wheat.) 1, 193-97 (1824) at 194.
57. 22 U.S. (9 Wheat.) 1, 193-97 (1824) at 194-95.
58. E.g., United States v. E.C. Knight Co., 156 U.S. 1, 12-13 (1895) (holding that the Sherman Antitrust Act could not be used to thwart a monopoly in the sugar-refining industry because the commerce power did not authorize Congress to regulate manufacturing, which was antecedent to commerce); see also, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303-04 (1936) (invalidating the Bituminous Coal Conservation Act of 1935 because federal regulation of wages and hours concerned production, not commerce).
59. E.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 523-25, 527-28, 542-51 (1935) (invalidating the Federal Live Poultry Code for the New York City metropolitan area, which regulated the sale of diseased chickens and which included wage, hour, and child labor provisions, based on an "indirect" relationship to interstate commerce).
60. Carter Coal, 298 U.S. at 305. Compare Swift & Co. v. United States, 196 U.S. 375, 398-99 (1905) (upholding application of the Sherman Act to price fixing by stockyard owners), with Schechter Poultry, 295 U.S. at 543 ("So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the state.").
61. E.g., Hammer v. Dagenhart, 247 U.S. 251, 268-72, 276-77 (1918) (invalidating a federal ban on the shipment in interstate commerce of goods produced by child labor, and distinguishing cases in which the Court upheld federal regulation on the ground that in those cases "the use of interstate transportation was necessary to the accomplishment of harmful results," whereas in the case at bar "[t]he goods shipped [were] of themselves harmless").
62. Carter Coal, 298 U.S. at 291.
63. E.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 22-24, 34-43 (1937) (upholding federal regulation of labor relations in the steel industry).
64. See generally FRIEDMAN, supra note 53, at 3-8, 202, 214, 217-36 (describing the political fight over President Roosevelt's plan); JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2010) (detailing the controversy surrounding President Roosevelt's plan).
65. FRIEDMAN, supra note 53, at 208 (quoting Letter from President Franklin D. Roosevelt to David Grey (June 17, 1935)).
66. For impressive use of a formal, statistical model to prove this point, see Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. LEGAL ANALYSIS 69 (2010).
67. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 247-49, 253-58, 261 (1964) (upholding Title II of the Civil Rights Act of 1964, which prohibited racial discrimination by places of public accommodation); Katzenbach v. McClung, 379 U.S. 294, 296-99, 301-05 (1964) (upholding Title II's application to a midsized, family-owned restaurant); United States v. Darby, 312 U.S. 100, 108-10, 113-24 (1941).
68. 317 U.S. 111, 114-16, 118-29 (1942).
69. 317 U.S. 111, 114-16, 118-29 (1942) at 127-28 ("The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production.").
70. 317 U.S. 111, 114-16, 118-29 (1942) at 128 ("[B]eing in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases."). The Court further reasoned that homegrown wheat, even if never marketed, "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce." Id.
71. 18 U.S.C. § 921(a)(25) (2006) (defining a "school zone" as: "(A) in, or on the grounds of, a public, parochial, or private school; or (B) within a distance of 1,000 feet from the grounds of a public, parochial, or private school"); id. § 922(q)(2)(a) (making it a crime "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone"), invalidated by United States v. Lopez, 514 U.S. 549 (1995).
72. 514 U.S. 549, 552 (1995). Chief Justice Rehnquist identified three types of activity that Congress may regulate using its commerce power: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. Id. at 558-59 (citations omitted).
73. 561. Rehnquist further observed that the law "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. He also noted the absence of legislative findings on how firearm possession in school zones affects interstate commerce. Id. at 562-63.
74. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being. Id. at 563-64 (citations omitted).
75. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 564-65.
76. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-beingat 564.
77. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 580 (Kennedy, J., concurring).
78. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being
79. 42 U.S.C. § 13981 (2006), invalidated by United States v. Morrison, 529 U.S. 598 (2000).
80. 529 U.S. 598 (2000).
81. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 613.
82. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being The Chief Justice further wrote that, like the GFSZA in Lopez, VAWA "contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." Id.
83. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 614 ("In contrast with the lack of congressional findings that we faced in Lopez, § 13981 is supported by numerous findings regarding the serious impact that gendermotivated violence has on victims and their families.").
84. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 615.
85. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 615
86. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 615
87. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 615-16.
88. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 617.
89. 545 U.S. 1 (2005).
90. Id. at 17-19.
91. 21 U.S.C. § 801 (2006).
92. Raich, 545 U.S. at 3-4, 6, 8-9.
93. 317 U.S. 111 (1942).
94. Raich, 545 U.S. at 18.
95. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 18-19.
96. More precisely, the Court considered whether Congress could have rationally concluded that the presence of firearms near schools substantially affects interstate commerce: The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being at 25-26 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 720 (1966)).
97. United States v. Morrison, 529 U.S. 598, 644 (2000) (Souter, J., dissenting) ("Just as the old formalism had value in the service of an economic conception [i.e., laissez faire], the new one is useful in serving a conception of federalism.").
98. Using these two defining characteristics of public goods, Paul Samuelson provided a remarkably simple and powerful mathematical formulation of efficiency in demand and supply. Paul A. Samuelson, Diagrammatic Exposition of a Theory of Public Expenditure, 37 REV. ECON. & STAT. 350 (1955); Paul A. Samuelson, The Pure Theory of Public Expenditure, 36 REV. ECON. & STAT. 387 (1954). Note that the two characteristics of public goods are distinct. An uncongested bridge is nonrivalrous, but a tollbooth could be used to exclude people. A congested road with many entrances is rivalrous, but it is difficult to exclude people from using it.
99. Technical characteristics of goods can cause markets to fail. The classic mathematical treatment is KENNETH J. ARROW & F.H. HAHN, GENERAL COMPETITIVE ANALYSIS (1971). Market failure provides the conventional economic justification for state supply and regulation of goods. Early examples of books that use the categories of market failure to organize and evaluate regulations are STEPHEN BREYER, REGULATION AND ITS REFORM (1982), and CHARLES L. SCHULTZE, THE PUBLIC USE OF PRIVATE INTEREST (1977).
100. The distinction between private and public externalities is fundamental to the economic analysis of property law. See ROBERT COOTER & THOMAS ULEN, LAW & ECONOMICS 147-50 (5th ed. 2008).
101. For an early formulation of this general approach that influenced economists, see WALLACE E. OATES, FISCAL FEDERALISM (1972). For a later summary of this approach, see Wallace E. Oates, Federalism and Government Finance, in MODERN PUBLIC FINANCE 126 (John M. Quigley & Eugene Smolensky eds., 1994).
102. See OATES, supra note 102.
103. ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 107 (2000).
104. F or an overview of game theory, see DREW FUDENBERG & JEAN TIROLE, GAME THEORY (1991).
105. For a critique of transaction costs and the Coase Theorem in light of game theory, see Robert Cooter, The Cost of Coase, 11 J. LEGAL STUD. 1 (1982).
106. See, e.g., NICHOLAS L. GEORGAKOPOULOS, PRINCIPLES AND METHODS OF LAW AND ECONOMICS 97 (2005) ("[T]he costs of transacting impede the parties' bargain."); Cooter, supra note 106, at 14 ("The basic idea of [Coase's] theorem is that the structure of the law which assigns property rights and liability does not matter so long as transaction costs are nil; bargaining will result in an efficient outcome no matter who bears the burden of liability.").
107. Here is the equivalent proposition for the private sector: with zero transaction costs of bargaining, the supply of private goods is efficient regardless of the number of markets. The choice between markets and hierarchies matters to efficiency only because of transaction costs.
108. In the United States, compacts may require congressional approval. U.S. CONST. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State . . . ."). In Virginia v. Tennessee, 148 U.S. 503, 519 (1893), the Court held that congressional approval is required only for compacts "tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." The Court declined to revisit this holding in United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 460 (1978).
109. See U.S. CONST. art. I, § 7. For several reasons, it may be more accurate to describe Congress, especially the Senate, as operating under a supermajority rule than under a majority rule, but this fact does not change the analysis in the text. There is less of a difference between unanimity rule and supermajority rule than there is between unanimity rule and majority rule, but there is still a difference, and typically a significant one.
110. We choose 90% as our illustrative number because legal claims settle out of court at least 90% of the time for most types of disputes. See, e.g., Leandra Lederman, Precedent Lost: Why Encourage Settlement, and Why Permit Non-Party Involvement in Settlements?, 75 NOTRE DAME L. REV. 221, 221 (1999) ("Even considering only cases actually docketed, approximately ninety percent settle."). The problem of settlement may be harder for states than for individuals because the state is a collective actor with competing interest groups.
111. Unsurprisingly, the Framers provided that ratification by nine of the thirteen states would suffice to establish the Constitution, U.S. CONST. art. VII, even though unanimity was required to amend the Articles of Confederation, ARTICLES OF CONFEDERATION of 1781, art. XIII.
112. This logic explains why theorists predicted that majority coalitions will incorporate as many members as effective control requires, and no more. William Riker developed this argument through the concept of the minimum winning coalition. See WILLIAM H. RIKER, THE THEORY OF POLITICAL COALITIONS 255-56 (1962). This prediction, however, is not borne out by many real-world legislatures, including the U.S. Congress. See, e.g., KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING 4, 6 (1998) (observing that one of the "basic facts of lawmaking" in modern America is that winning coalitions are almost always much greater than bare-majority sized). The instability of governing coalitions under majority rule, discussed in the following note, may help to explain the predictive failure of Riker's theory.
113. Note, however, that the same reason many people wish to join the majority coalition explains why it may be unstable: anyone excluded from the majority coalition can offer to benefit all but one member of it by replacing one of its members on terms more favorable to the others. The technical name for this problem is the "empty core." See Tracey E. George & Robert J. Pushaw, Jr., How Is Constitutional Law Made?, 100 MICH. L. REV. 1265, 1270 n.21 (2002) ("A bargaining situation requiring a majority agreement contains an empty core when a participant may be persuaded to defect from an agreement by the offer of a bigger share and such defection changes the majority agreement."); see also COOTER, supra note 104, at 58-59 (discussing majority-rule division of a fixed sum of money).
114. See, e.g., PAUL CRAIG & GRÁINNE DE BÚRCA, EU LAW: TEXT, CASES AND MATERIALS 124 (4th ed. 2008) ("Member States acknowledged that there had to be an extension of qualified-majority voting in an expanded Union. Unanimity would often be synonymous with inaction, since one State out of twenty-seven would almost certainly object."); HANS SLOMP, EUROPEAN POLITICS INTO THE TWENTY-FIRST CENTURY: INTEGRATION AND DIVISION 134 (2000) ("Since the late 1980s, . . . the rule of unanimity has been given up, except for very important matters. In the Council of Ministers, a qualified majority now suffices for most decisions.").
115. This is one reason why Buchanan and Tullock stressed the advantages of unanimity rule in their classic book that revived contractarianism. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 88-96 (1962); see also Mathias Dewatripont & Gerard Roland, Economic Reform and Dynamic Political Constraints, in 2 MONETARY AND FISCAL POLICY 415, 421 (Torsten Persson & Guido Tabellini eds., 1994) ("Unanimity might seem less relevant than majority for understanding the effects of political constraints. However, not only is unanimity required in many institutional contexts, but one might also view it as a way to model consensual decision-making, whereas majority rule can be seen as a way to examine more conflictual contexts.").
116. See, e.g., ERIK BERGLÖF ET AL., BUILT TO LAST: A POLITICAL ARCHITECTURE FOREUROPE 35 (2003) ("Small countries [in the EU] are concerned about the influence of large countries . . . ."); JANUSZ BUGAJSKI & ILONA TELEKI, ATLANTIC BRIDGES: AMERICA'S NEW EUROPEAN ALLIES 30 (2007) ("The smaller states, including the newcomers, seek access to the higher reaches of the EU leadership and fear being marginalized by the bigger powers."); CRAIG & DE BÚRCA, supra note 115, at 57 ("The [Constitutional Treaty] had important institutional implications for the European Council. Some Member States felt that the Presidency should no longer rotate between States on a six-monthly basis, since they believed that this would not work within an enlarged Union, which required greater continuity of policy. This view was advocated by a number of the larger States, but was opposed by some of the smaller States, which felt that the Presidency of the European Council would be dominated by the larger Member States.").
117. Madison thought his fellow delegates were concerned about the wrong sort of division. In response to delegates who stressed conflicts between large and small states, Madison stated that "the great division of interests in the U. States . . . . did not lie between the large & small States: it lay between the Northern & Southern." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 486.
118. Even in the two-state scenario, the advantages of federal power are often significant, which helps to explain why the Constitution extends federal judicial power "to Controversies between two or more States." U.S. CONST. art. III, § 2, cl. 1.
119. See, e.g., THE FEDERALIST NO. 7 (Alexander Hamilton) (detailing land disputes between Connecticut and Pennsylvania and between New York and Vermont, and describing Connecticut's "disposition to retaliation" in response to Rhode Island's passage of laws violating private contracts). Hamilton expressed this concern: America, if not connected at all, or only by the feeble tie of a simple league offensive and defensive, would by the operation of such opposite and jarring alliances [between different states and foreign nations] be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts, into which she was divided would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all.
120. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824) ("Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one.").
121. See discussion infra Part III.A.
122. A complete discussion would consider the separation and interrelation of powers at the national level, including such topics as the bicameralism and presentment requirements of Article I, Section 7; instability under majority rule, including the empty core of a game of redistribution by majority rule, see supra note 114; and the agency problem of representation of citizens by officials, including lobbying. For a discussion of these topics, see COOTER, supra note 104, at 171-239. These are matters of political logic. A complete theory would have to go beyond logic in explaining politics.
123. U.S. CONST. art. I, § 8, cl. 1.
124. U.S. CONST. art art. I, § 8, cl. 18.
125. U.S. CONST. art art. I, § 8, cl. 1.
126. See, e.g., Brett M. Frischmann & Barbara van Schewick, Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo, 47 JURIMETRICS J. 383, 402 n.62 (2007) ("A network effect exists if consumers' valuation of the good increases with the number of users of the good; this leads to an externality because a user who considers joining the network does not consider the positive impact of his adoption decision on other users." (citing Michael L. Katz & Carl Shapiro, Network Externalities, Competition, and Compatibility, 75 AM. ECON. REV. 424 (1985) (defining network effects))).
127. Note, however, that rapid technological change undermines the case for government intervention in natural monopolies by making them vulnerable to innovation. Thus, telephone systems exhibit natural monopoly, but the case for regulating long-distance carriers was greater before cell phones and the Internet created dynamic competition.
128. Scholars are now engaged in a lively debate about where intellectual property rights should expand and where they should contract. See, e.g., JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND (2008); William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. CHI. L. REV. 471, 471-75 (2003) ("rais[ing] questions concerning the widely accepted proposition that economic efficiency requires that copyright protection should be limited in its duration"); Lawrence Lessig, Commentary, The Creative Commons, 65 MONT. L. REV. 1, 11 (2004) ("The idea here is that we need to build a layer of reasonable copyright law, by showing the world a layer of reasonable copyright law resting on top of the extremes. Take this world that is increasingly a world by default regulating all and change it into a world where once again we can see the mix between all, none, and some, using the technology of the Creative Commons.").
129. See, e.g., Granholm v. Heald, 544 U.S. 460, 472 (2005) (emphasizing the "tendencies toward economic Balkanization that had plagued relations among . . . the States under the Articles of Confederation" (quoting Hughes v. Oklahoma, 441 U.S. 322, 325-26 (1979))). Justice Jackson once recounted this history on behalf of the Court: When victory relieved the Colonies from the pressure for solidarity that war had exerted, a drift toward anarchy and commercial warfare between states began. " . . . [E]ach State would legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view." This came "to threaten at once the peace and safety of the Union." The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was "to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony" and for that purpose the General Assembly of Virginia in January of 1786 named commissioners and proposed their meeting with those from other states.
130. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533 (1949) (omission in original) (citations omitted).
131. For a cogent discussion of contemporary doctrine, see Granholm, 544 U.S. at 472-73. There are two exceptions to the dormant commerce principle: congressional approval and market participation by states. We do not discuss them here.
132. The European Union has eclipsed the United States as the world's largest zone of unrestricted mobility. Like the United States, moreover, Europe has experienced unprecedented, sustained economic growth.
133. See, e.g., H.P. Hood & Sons, 336 U.S. at 538 ("The material success that has come to inhabitants of the states which make up this federal free trade unit has been the most impressive in the history of commerce, but the established interdependence of the states only emphasizes the necessity of protecting interstate movement of goods against local burdens and repressions.").
134. See supra note 55 (quoting Chief Justice Marshall's language in McCulloch). Notably, in our account, the Necessary and Proper Clause is primarily a reminder. Similarly, Chief Justice Marshall already had decided McCulloch in favor of the federal government before he turned to the Necessary and Proper Clause. See 17 U.S. (4 Wheat.) at 411 ("Butthe constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added [the Necessary and Proper Clause].").
135. U.S. CONST. art. I, § 10, cl. 1 ("No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."); id. art. I, § 10, cl. 2 ("No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress."); id. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.").
136. We express no view on whether the distinction between individual and collective action by (nation) states should guide interpretation of the Treaty Clause, id. art. II, § 2, cl. 2. Writing for the Court in Missouri v. Holland, 252 U.S. 416 (1920), Justice Holmes registered the existence of a multination problem of collective action. See infra note 227. Another set of questions concerns the constitutional implications of the fact that many collective action problems today are global in scope. So, for example, one might argue that Congress may not pass a law addressing the problem of global warming on the ground that one nation acting alone cannot meaningfully ameliorate a global collective action problem. A defender of such legislation might respond that the law would be sufficiently related to advancing the general welfare, such as by showing global leadership or by taking action in anticipation of eventual treaty negotiations. See infra Part V (discussing how courts might evaluate congressional judgments about collective action problems).
137. See U.S. CONST. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.
138. One might argue that the profoundly transformative nature of the Civil War, Reconstruction, and the post-Civil War Amendments should inform the scope of congressionalpower under Article I, Section 8-that Section 8 should not be read in isolation of them. Such an historical argument, if persuasively developed, obviously would require modification of our own account.
139. In technical terms, collective action problems that harm all of the states are Pareto inefficiencies, whereas collective action problems that harm some states a lot and benefit other states a little are cost-benefit inefficiencies.
140. It would be a mistake to code those who seek to limit federal power as "conservative" and those who seek to promote it as "liberal." There are different kinds of conservatives and liberals on federalism questions. There are also different kinds of federalism questions. For example, many social conservatives would vigorously defend a federal law banning abortion. Cf. Gonzales v. Carhart, 550 U.S. 124 (2007). And many liberals often oppose broad federal preemption of state law. See, e.g., Wyeth v. Levine, 129 S. Ct. 1187 (2009); Altria Grp., Inc. v. Good, 129 S. Ct. 538 (2008).
141. See, e.g., Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570, 638-48 (1996) (discussing different kinds of externalities, including psychological externalities). Amartya Sen refers to this sort of externality as an instance of "sympathy." Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317, 326-29 (1977).
142. This is not to suggest that one must invoke the idea of psychological externalities in order to justify federal disaster relief. A large disaster has humanitarian consequences that the federal government can relieve far better than the states. For example, the federal government can maintain a field hospital to deploy to any state facing a medical disaster. One federal field hospital is cheaper and more effective than each state maintaining its own field hospital, or one state maintaining such a hospital and charging other states for its use. Similarly, much disaster relief rebuilds infrastructure such as roads and bridges. The localities and states that build roads and bridges cannot insure them privately against disasters. So federal relief for disastrous destruction of infrastructure fills a hole in insurance markets for states.
143. An interstate externality refers to interdependence in the utility functions of individuals in at least two states. Mathematics can handle interdependence regardless of whether it is material or psychological. But the measurement of some kinds of externalities is easier than others, notably the traditional, material externalities. The history of cost-benefit analysis, however, is in part a history of learning to measure what was previously unmeasurable.
144. Cf., e.g., Esty, supra note 141, at 595 n.73 ("Indeed, without a 'willingness to pay' echanism to check the reality and depth of [psychological] harms, there exists a moral hazard problem of potentially significant proportions because those claiming injury have little reason to report accurately on their welfare losses and much reason to exaggerate."). For relevant economic writing, see Amartya Sen, The Impossibility of a Paretian Liberal, 78 J. POL. ECON. 152 (1970) (explaining why meddlesome preferences erode the usefulness of Pareto efficiency); cf. JOHN STUART MILL, ON LIBERTY (Currin V. Shields ed., Bobbs-Merrill Co. 1956) (1859) (proposing the "harm" principle to cabin the circumstances in which others may interfere with the liberty of the individual).
145. Constitutional law has struggled with the problem of psychological harm in the context of standing doctrine. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Sierra Club v. Morton, 405 U.S. 727, 760 (1972) (Blackmun, J., dissenting) ("In this environmental context I personally prefer the older and particularly pertinent observation and warning of JohnDonne." (referencing Devotions XVII)).
146. For an illuminating discussion, see generally Cass R. Sunstein, Willingness to Pay vs. Welfare, 1 HARV. L. & POL'Y REV. 303 (2007). Willingness to pay is also not an appropriate criterion in certain situations regardless of whether it accurately measures welfare, such as in matters of basic human rights.
147. Similarly, Jack Balkin distinguishes questions of fidelity to the Constitution from questions of institutional responsibility. See Jack M. Balkin, Fidelity to Text and Principle, in THE CONSTITUTION IN 2020, at 11, 20 (Jack M. Balkin & Reva B. Siegel eds., 2009) ("Many theories of constitutional interpretation conflate two different questions. The first is the question of what the Constitution means and how to be faithful to it. The second asks how a person in a particular institutional setting-like an unelected judge with life tenure- should interpret the Constitution and implement it through doctrinal constructions and applications.").
148. There is a robust and longstanding debate over the political safeguards of federalism in constitutional law and theory. See, e.g., JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 171-259 (1980); Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994); Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341; Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
149. An example of a contestable normative concept is national identity. Cf., e.g., Esty, supra note 141, at 640 ("Interest in distant environmental harms may derive from a sense of community identity that exceeds narrow jurisdictional bounds."); id. at 641 n.267 ("A number of existing federal environmental programs seem to reflect . . . a national ecological and political identity that spans the fifty states. One could argue, for example, that the Clean Water Act's construction grants program, providing federal funds to build wastewater treatment facilities, represents a commitment that no American should live in a community where untreated sewage flows into nearby rivers.").
150. PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982).
151. Originalists and their critics make distinctions that we do not address, such as the difference between the intent of the Framers and the intent of the Ratifiers, and the differences between original intent and original meaning. See, e.g., RAKOVE, supra note 11, at 7-11 (discussing these distinctions). An originalist theory must cope with the fact that Hamilton and Madison vigorously debated the meaning of the General Welfare Clause during the Constitution's first fifteen years, which suggests the existence of original meanings, not a single, definitive understanding. See supra notes 34-37 and accompanying text; see also, e.g., United States v. Butler, 297 U.S. 1, 65-66 (1936) (discussing Madison's restrictive view of the General Welfare Clause and Hamilton's expansive view). As one prominent historian has written: Both the framing of the Constitution in 1787 and its ratification by the states involved processes of collective decision-making whose outcomes necessarily reflected a bewildering array of intentions and expectations, hopes and fears, genuine compromises and agreements to disagree. The discussions of both stages of this process consisted largely of highly problematic predictions of the consequences of particular decisions. In this context, it is not immediately apparent how the historian goes about divining the true intentions or understandings of the roughly two thousand actors who served in the various conventions that framed and ratified the Constitution, much less the larger electorate that they claimed to represent . . . . [T]he notion that the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage. RAKOVE, supra note 11, at 6.
152. CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 7 (1969).
153. At the opposite end of the interpretive spectrum from originalism lies the view that evolving social values inform the meaning of the Constitution. See generally, e.g., ROBERT C. POST, Theories of Constitutional Interpretation, in CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 23 (1995); Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959 (2008). As social values change, according to this view, so may the legally authoritative understanding of the Constitution. Compare, e.g., Roper v. Simmons, 543 U.S. 551, 587 (2005) (Stevens, J., concurring) ("[T]hat our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text."), with id. at 608 (Scalia, J., dissenting) ("The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to 'the evolving standards of decency' of our national society." (citationomitted)). Over time, most Americans have broadened their appreciation of interstate externalities that warrant federal intervention. Daniel Esty makes related points in focusing on the "choice of public" issue that arises in the context of psychological externalities. See Esty, supra note 141, at 594-97, 638-47; id. at 597 ("It is clear . . . that in environmental policymaking, the sphere of affected interests may expand or contract depending on an evolving definition of community."); id. at 646-47 ("[T]o the extent that we have a national political identity as Americans, there will be [a] . . . set of environmental rules that represents the moral behavioral minimum that each citizen owes to his fellow citizens.").
154. While we propose a flexible framework for understanding the general welfare, some modern scholars who have investigated the original meaning of the "general Welfare" have reached strong conclusions. One has argued that the original meaning precludes federal spending "for the special welfare of particular regions or states." John C. Eastman, Restoring the "General" to the General Welfare Clause, 4 CHAP. L. REV. 63, 65 (2001) ("Congress, I contend, has only the power to spend for the 'general' welfare and not for the special welfare of particular regions or states, even if the spending was undertaken in all regions or all states and therefore might be said to enhance 'general' welfare in the aggregate."). Others have maintained that the General Welfare Clause does not authorize any federal spending. See David E. Engdahl, The Basis of the Spending Power, 18 SEATTLE U. L. REV. 215, 216 (1995) ("Congress' power to spend does not derive from that so-called 'General Welfare' Clause, but instead derives from two overlapping but independent provisions found elsewhere in the Constitution . . . . Th[e] 'Property Clause' is ample to authorize all federal spending, whether or not it is also authorized by the Necessary and Proper Clause." (footnote omitted)); Jeffrey T. Renz, What Spending Clause? (Or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution, 33 J. MARSHALL L. REV. 81, 142, 144 (1999) ("The [General Welfare C]lause is not . . . a grant of power to spend . . . . The General Welfare Clause is an intentionally redundant limit on the tax power."). Still another commentator has discerned in the original meaning of the clause not just a failure to authorize federal spending, but also a significant restriction on federal authority-namely, "a standard of impartiality borrowed from the law of trusts." Robert G. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. KAN. L. REV. 1, 4 (2003) ("Examination of history shows that the General Welfare Clause is more than a mere 'non-grant' of spending power. It was intended to be a sweeping denial of power-specifically, it was intended to impose on Congress a standard of impartiality borrowed from the law of trusts, thereby limiting the legislature's capacity to 'play favorites' with federal tax money.").
155. Helvering v. Davis, 301 U.S. 619, 641 (1937) (emphasis added); see also New York v. United States, 505 U.S. 144, 157 (1992) ("The Federal Government undertakes activities today that would have been unimaginable to the Framers . . . . Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role.").
156. We do not provide here a public choice analysis of the circumstances in which Congress would be willing to exercise self-restraint.
157. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193-97 (1824).
158. 317 U.S. 111 (1942).
159. Some scholars conceive of competitiveness effects that spill across jurisdictions as "economic externalities." See, e.g., Esty, supra note 141, at 593; Richard B. Stewart, International Trade and Environment: Lessons from the Federal Experience, 49 WASH. & LEE L. REV. 1329, 1340-41 (1992) (discussing "several different types of . . . externalities," including "[p]ollution spillovers," "[r]esource externalities," "[p]reservation externalities," and"[c]ompetitiveness externalities"); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1211-12, 1215-19 (1977).
160. Antidiscrimination provisions that cover the workplace may increase the costs of doing business. Accordingly, states may be disinclined to impose such costs on employers that operate within their jurisdictions unless a certain number of other states do the same. Thus the need for collective action can impede a state seeking to end workplace discrimination. Moreover, local discrimination against potential providers or consumers of goods and services may impede the development or functioning of national markets in various ways. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964), both of which upheld a federal prohibition on racial discrimination in places of public accommodation, can be justified on this ground. When discrimination discourages the interstate movement of labor and capital, a collective action problem exists.
161. Note that this is a statement about national markets, not externalities. Competitive pressures favoring the lowest-cost practices operate through markets, not externally to them. The confusion in language stems partly from Tibor Scitovsky's description of market competition as a "pecuniary" externality, which contradicts the idea that an externality is unpriced. See Tibor Scitovsky, Two Concepts of External Economies, 62 J. POL. ECON. 143, 146 (1954).
162. 312 U.S. 100 (1941); see also Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (2006). Darby overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), and embraced the dissent of Justice Holmes. The post-1937 Court repudiated the pre-1937 Court's insistence that "[t]here is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition." Id. at 273. The pre-1937 Court described well the logic of collective action that it deemed unpersuasive: It is further contended that the authority of Congress may be exerted to control interstate commerce in the shipment of child-made goods because of the effect of the circulation of such goods in other States where the evil of this class of labor has been recognized by local legislation, and the right to thus employ child labor has been more rigorously restrained than in the State of production. In other words, that the unfair competition, thus engendered, may be controlled by closing the channels of interstate commerce to manufacturers in those States where the local laws do not meet what Congress deems to be the more just standard of other States. Id.
163. Darby, 312 U.S. at 122; see also id. at 115 ("The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows.").
164. For the use of similar reasoning to defend the result in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), see Regan, supra note 7, at 603-04. For ongoing debates on races to the bottom (or top), see, for example: Kirsten H. Engel, State Environmental Standard- Setting: Is There a "Race" and Is It "To the Bottom"?, 48 HASTINGS L.J. 271 (1997); Esty, supra note 141; Richard L. Revesz, The Race to the Bottom and Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmenta Regulation, 67 N.Y.U. L. REV. 1210 (1992); Joshua D. Sarnoff, The Continuing Imperative (but Only from a National Perspective) for Federal Environmental Protection, 7 DUKE ENVTL. L. & POL'Y F. 225, 278-85 (1997); and Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67 (1996).
165. The Court also used collective action reasoning in upholding the 1961 amendments to the FLSA. See Maryland v. Wirtz, 392 U.S. 183, 190-93 (1968), overruled by Nat'l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
166. 452 U.S. 264 (1981).
167. 452 U.S. 264 (1981) at 281-82 (quoting 30 U.S.C. § 1201(g) (1976 & Supp. III 1979)).
168. 168. Id. at 282.
169. United States v. Lopez, 514 U.S. 549, 561 (1995).
170. See BREST ET AL., supra note 5, at 626.
171. Lopez, 514 U.S. at 581 (Kennedy, J., concurring) (emphasis added); see Regan, supra note 7, at 566 (arguing that this is one way to read the portion of Kennedy's opinion quoted in the text).
172. On this view, a critic of Lopez would want to argue that Congress rationally could have viewed the Gun-Free School Zones Act as an important part of a larger, interstate regulation of firearm sale, possession, and use that would have been undermined unless Congress were permitted to regulate gun possession in school zones. A critic of the Commerce Clause holding in Morrison would want to compile evidence of impediments to the interstate movement of women caused by state failures to protect them from gender-motivated violence.
173. Anything can be included or excluded from a class by selecting its level of generality. Thus, horses belong to the class of mammals but not to the class of primates. Similarly, wheat grown and consumed at home belongs to the class of "wheat" and to the class of "goods grown and consumed at home." The former is a class of market goods and the latter is a class of non-market goods. There is no logical or natural way of choosing the class to which wheat grown and consumed at home belongs. It belongs to either of them depending on the purpose of the categorization. The correct level of generalization should be the conclusion of the Court's decision, not its basis.
174. See supra note 75 (quoting the Lopez Court's description of why the government believed that prohibiting guns in schools is within the scope of the commerce power).
175. Or, to reiterate Chief Justice Marshall's language in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824), an analysis of collective action should determine whether Congress is dealing with "that commerce which concerns more States than one." See also id. at 195 ("The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally . . . ."). In this sentence, Marshall used the word "generally" as a synonym for the phrase "among the several States." The theory of collective action federalism also ascribes the same meaning to them.
176. For a related approach to the Commerce Clause, see generally Regan, supra note 7.
177. If Clause 1 continues to be read to prohibit any federal regulation, then we share Akhil Amar's concern that "[w]ithout a broad reading of 'Commerce' in [Clause 3], it is not entirely clear whence the federal government would derive its needed power to deal with noneconomic international incidents-or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among states." AMAR, supra note 14, at 107-08; see also Balkin, supra note 8, at 1 ("In the eighteenth century . . . , 'commerce' did not have such narrowly economic connotations. Instead, 'commerce' meant 'intercourse' and it had a strongly social connotation. 'Commerce' was interaction and exchange between persons or peoples."). For further discussion of the relation between Clause 1 and Clause 3, see infra note 242 and accompanying text.
178. We have in mind the fact that differences in state laws complicate custody disputes, wills, and trusts. A federal system requires balancing harmonization through centralization and diversity through decentralization.
179. We have in mind the full-faith-and-credit questions potentially implicated by the issue of gay marriage.
180. Discrimination historically occurred against racial intermarriage. See, e.g., Naim v. Naim, 350 U.S. 985 (1956) (dismissing a challenge to Virginia's antimiscegenation statute despite the statute's incompatibility with the equal protection principles first articulated in Brown v. Board of Education, 347 U.S. 483 (1954)). When the legitimacy of Brown was more secure, the Court unanimously invalidated the Virginia law as a violation of equal protection and due process. Loving v. Virginia, 388 U.S. 1 (1967). Today, discrimination occurs against same-sex marriages. In Lawrence v. Texas, the Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986), announcing a right of sexual privacy in the home that extends to homosexuals. 539 U.S. 558, 578 (2003). The Court explicitly put aside the issue of gay marriage without explaining why or how it was distinguishable. See id. If the Court followed to its logical conclusion its defense of the dignity of intimate homosexual relationships and the state's lack of authority to demean homosexuals, see id. at 560, 567, 575, 578, prohibitions of gay marriage would almost certainly violate equal protection. For a discussion, see Siegel, supra note 153.
181. Chief Justice Marshall came up with the term in his opinion in Willson v. Black-Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 252 (1829).
182. See, e.g., supra note 130; infra note 187.
183. A basic exercise in microeconomics involves proving that the benefits from restricting trade in various ways are less than the costs.
184. See, e.g., Granholm v. Heald, 544 U.S. 460 (2005) (prohibiting New York and Michigan from discriminating against certain out-of-state wineries).
185. 336 U.S. 525, 538 (1949) (emphasis added). Justice Jackson continued: Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality. Id. at 539.
186. For a seminal interpretation of the case law, see generally Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986).
187. H.P. Hood & Sons, 336 U.S. at 533 ("This distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law."); id. at 535 ("This Court consistently has rebuffed attempts of states to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state, while generally supporting their right to impose even burdensome regulations in the interest of local health and safety.").
188. In Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), the Court rejected the submission that economic protectionism is justified when it is done for the sake of the health of the beneficiaries. Justice Cardozo wrote for a unanimous Court that such an exception would "eat up the rule," and that the Constitution "was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Id. at 523.
189. 301 U.S. 548 (1937).
190. 301 U.S. 619 (1937).
191. Steward Machine, 301 U.S. at 588 (citations and footnote omitted).
192. Steward Machine, 301 U.S at 588 n.9.
193. Helvering, 301 U.S. at 644 (citation omitted).
194. One author observes: In social policies the European Union has much less of a record. One of its main concerns has been the removal of barriers to labor mobility, the free flow of people to jobs in other countries. In practice, labor mobility remains severely curtailed by language diversity and great variations in national social security systems. It is still very difficult for people who move to other member states to transfer the collective old-age pension rights they have earned in their country of origin. This "nontransferability" of social security rights, in particular of old-age pension rights, is called the "pension gap." In contrast to practice in most member states, the European Union's social policies have not included any active employment policies. SLOMP, supra note 115, at 127.
195. Helvering, 301 U.S. at 640. The Court has taken this approach ever since. See, e.g., South Dakota v. Dole, 483 U.S. 203, 207 (1987) ("In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.").
196. Helvering, 301 U.S. at 641.
197. See supra note 185 and accompanying text.
198. See supra notes 57, 157, and accompanying text.
199. Lest our suggestion be dismissed as implausible, we note that what counts as a plausible constitutional argument can change dramatically over time. Recently, for example, the Court radically changed the longstanding judicial understanding of the Second Amendment. Compare District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (holding for the first time in American history that the Second Amendment protects an individual right to possess a firearm-including a handgun-unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home), with Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 224 (2008) (reproducing Chief Justice Warren Burger's 1991 statement that the individual rights view of the Second Amendment is "the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime," and Judge Robert Bork's 1989 statement that the Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" and that state gun control legislation is "probably constitutional" (citations omitted)). The Roberts Court has further held that the right declared in Heller binds state and local governments. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
200. U.S. CONST. art. I, § 8, cl. 1.
201. See supra Part I.
202. Notably, Madison did not reject the idea of regulatory power under Clause 1 as textually impossible based on a plain reading of Clause 1. See supra note 37. If anything, Madison discounted the importance of the distinction between regulation and expenditure. See BREST ET AL., supra note 5, at 83 ("A restriction of the power 'to provide for the common defense and general welfare' to cases which are to be provided for by the expenditure of money would still leave within legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution." (quoting Madison, supra note 50, at 585)).
203. Cf. CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEANING OF THE FOUNDERS' CONSTITUTION 119 (2005) ("There is much to be said for the position that the listed powers [in Article I, Section 8] were not intended to be exclusive ."). Calvin Johnson writes: [T]he best legal maxim of interpretation for the list of powers in Article I, Section 8 of the Constitution is not expressio unius est exclusio alterius (expression of one excludes all others), but rather ejusdem generic, meaning that unstated items covered by a general standard must be of the same class as the enumerated items, but the enumerated items are not exclusive. The list of powers is illustrative. Indeed they may be campaign promises of what the Framers really wanted to do quickly. But they are not exhaustive of what the Congress could do within the appropriately national sphere. Id. at 122 (footnote omitted). According to Johnson, "[t]he broadest statement of the principle of federal jurisdiction is the power 'to provide for the common Defense and general Welfare' in clause 1 of the Constitution's description of the powers of Congress." Id.
204. The Court at one point distinguished impermissible "regulatory" taxes from permissible "revenue raising" taxes. See, e.g., Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922). But the Court has long since abandoned that doctrine as resting on a false distinction and as not grounded in the Constitution. See, e.g., United States v. Kahriger, 345 U.S. 22, 31 (1953) ("Unless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power."); Sonzinsky v. United States, 300 U.S. 506, 513-14 (1937) ("Every tax is in some measure regulatory . . . . But [it] is not any the less a tax because it has a regulatory effect . . . . Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts.").
205. See Robert D. Cooter & Neil S. Siegel, Taxes, Regulations, and Health Care: Part II of Collective Action Federalism (Sept. 20, 2010) (unpublished manuscript) (on file with authors). A relevant question we do not explore here is whether federal regulatory power under Clause 1 should be unavailable when Congress is barred from taxing the states by the doctrine of intergovernmental tax immunity.
206. To the extent that Clause 1 authorizes federal regulation, it follows that Congress need not invoke the Necessary and Proper Clause to justify federal regulation of noneconomic activity on the ground that it affects economic activity. Rather, the Necessary and Proper Clause would serve as a reminder of the breadth of federal power in Section 8 to address collective action problems, economic or otherwise. See supra note 134 and accompanying text.
207. See, e.g., Bradford C. Mank, Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause?, 36 GA. L. REV. 723, 724 (2002) ("While the Court's Commerce Clause jurisprudence is ultimately more concerned with the impacts of activities upon interstate commerce than the activities' location, most judges and commentators have assumed that whether a species is located in only one state or crosses state boundaries is an important factor." (footnotes omitted)). But see John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174, 185 n.49 (1998) ("Why the fact that a bird or animal crosses state lines of its own volition and without being itself an object of interstate commerce is sufficient for Commerce Clause purposes remains unexplained.").
208. The airshed is easier to defend as a channel of interstate commerce because air isundifferentiated and airplanes fly through it at nearly all altitudes. 209. See William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond, 31 ENVTL. L. REP. 10741, 10766-67 (2001) ("[W]hen one seeks the authority for plenary congressional authority over interstate waters per se or to regulate interstate pollution simply by reason of its being interstate, one seeks in vain.Congress' power to legislate must be grounded in its enumerated powers and does not extend to interstate waters . . . except as any such legislation is otherwise based on the enumerated powers.").
209. See id. at 10761-62, 10765 (compiling case citations and quotations). This problem has been around for a long time. "Curiously enough," Robert Stern wrote in the Harvard Law Review in 1934, "the cases most out of harmony with the historical approach to the commerce clause are not those holding federal legislation invalid, but those upholding federal statutes regulating movements across state lines where no true 'commerce' was present at all. The fact that automobile thieves or persons bent on private immorality cross state lines does not render their activity commercial." Stern, supra note 26, at 1355.
210. Cf. Funk, supra note 209, at 10771 ("The larger question raised by a stricter scrutiny of the Commerce Clause basis for environmental legislation . . . is the extent to which the Court will reconsider, or consider for the first time, assumptions that have underlain environmental legislation and its judicial review for one-quarter century.").
211. Rapanos v. United States, 547 U.S. 715 (2006), concerned a fight over wetlands endangered by economic development. The question presented was whether wetlands adjacent to nonnavigable tributaries of traditional navigable waters were part of "the waters of the United States" within the meaning of the Federal Clean Water Act (CWA), see infra note 221. The plurality concluded that the term "navigable waters" in the CWA includes "only relatively permanent, standing or flowing bodies of water," not "intermittent or ephemeral flow[s]." Id. at 732-34. It further concluded that "only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands, are 'adjacent to' such waters and covered by the Act." Id. at 742. The plurality invoked federalism concerns and constitutional avoidance. Id. at 737-38. By contrast, Justice Kennedy concluded that the U.S. Army Corps of Engineers had both statutory and constitutional authority to regulate wetlands that are adjacent to nonnavigable tributaries of traditional navigable waters so long as the wetlands "possess a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made." Id. at 759 (Kennedy, J., concurring in judgment) (quoting Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 167, 172 (2001)). In his controlling opinion, Kennedy did not specify what the "significant nexus" test requires, but he did emphasize that the Corps must establish substantial ecological connections between the wetlands and traditionally navigable waters, regardless of the existence of hydrologic connections. Id. At 778-87. In practice, this requirement should allow robust federal protection of wetlands. Kennedy wrote that his interpretation of the CWA "does not raise federalism or Commerce Clause concerns sufficient to support a presumption against its adoption." Id. at 782. While conceding that his "significant-nexus requirement may not align perfectly with the traditional extent of federal authority," he wrote that "in most cases regulation of wetlands that are adjacent to tributaries and possess a significant nexus with navigable waters will raise no serious constitutional or federalism difficulty." Id.
212. While it is important to distinguish between questions of statutory interpretation- for example, the meaning of "navigable waters" in the CWA-and issues of constitutional authority, it is also true that the former often takes place in the shadow of the latter. For example, the previous note makes clear that the Justices in Rapanos were partially motivated by constitutional concerns.
213. 229 U.S. 848 (2000).
214. 18 U.S.C. § 844(i) (2006).
215. Jones, 529 U.S. at 855.
216. Jones, 529 U.S. at 855.
217. Jones, 529 U.S at 857 (internal quotation marks omitted).
218. Jones, 529 U.S at 858 (internal quotation marks omitted).
219. 531 U.S. 159 (2001).
220. Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) § 404(a), 33 U.S.C. § 1344 (2006).
221. 33 U.S.C. § 1362(7) (2006).
222. Migratory Bird Rule, 51 Fed. Reg. 41,217 (Nov. 13, 1986) (stating that section 404(a) extends to intrastate waters: "a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or b. Which are or would be used as habitat by other migratory birds which cross state lines; or c. Which are or would be used as habitat for endangered species; or d. Used to irrigate crops sold in interstate commerce"); see also SWANCC, 531 U.S. at 164 (quoting the Migratory Bird Rule). The Migratory Bird Rule clarified a federal regulation issued by the Corps to define a key statutory term in the CWA. See 33 C.F.R. § 328.3(a)(3) (2010) (defining "waters of the United States" to include "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce").
223. SWANCC, 531 U.S. at 173 (citations omitted) (internal quotation marks omitted).
224. SWANCC, 531 U.S. at 174.
225. As one of our colleagues has noted: Environmental legislation has become politically divisive. At a time when political institutions are themselves closely divided, the prospects are not bright for enacting contentious legislation sure to produce well-organized losers, which such wetlands legislation certainly would be . . . . As a practical political matter, SWANCC removes the federal government from this area as surely as a holding of unconstitutionality would . . . . [T]he shadow that SWANCC's clear statement interpretive rule casts is much more ominous than the shadow Lopez and Morrison together have cast over the theoretical reach of federal authority under the Commerce Clause. Christopher H. Schroeder, Environmental Law, Congress, and the Court's New Federalism Doctrine, 78 IND. L.J. 413, 455, 457 (2003). The political situation in Washington, D.C., obviously has changed significantly since 2003, but this does not mean Congress will now provide the clear statement that the SWANCC Court held was required-particularly in light of the Senate's rules and the present composition of the Court.
226. SWANCC, 531 U.S. at 195 (Stevens, J., dissenting). Justice Stevens invoked the reasoning of Justice Holmes in Missouri v. Holland, 252 U.S. 416 (1920), where the state sued to stop a federal game warden from enforcing the Migratory Bird Treaty Act of 1918 and associated regulations, arguing that the law violated the Tenth Amendment, id. at 430- 31. Writing for the Court, Holmes rejected the appeal to state sovereignty: Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. Id. at 435 (emphasis added).
227. Our concern is with the distracting quality of the "pretext" debate in many settings. Our point is not that allegations of pretext have force, so that Congress may regulate interstate commerce only for certain purposes and not others. Compare, e.g., William Van Alstyne, Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea, 1987 DUKE L.J. 769, 797-99 (arguing for the invigoration of pretext doctrine in Commerce Clause cases), with Schroeder, supra note 226, at 443-45 (critically analyzing Van Alstyne's view).
228. One could also attempt to justify federal regulation in this hypothetical by invoking the current doctrine's broad approval of congressional regulation of persons in interstate commerce. See supra text accompanying note 73. It is not clear, however, why individuals subject to a federal quarantine would necessarily qualify as persons in interstate commerce.
229. 130 S. Ct. 1949, 1961-62 (2010).
230. 130 S. Ct. 1949, 1961-62 (2010)at 1959 (quoting a 1945 report of the Judicial Conference of the United States finding that "States would not accept an 'appreciable number' of 'mental[ly] incompetent' individuals 'nearing expiration' of their prison terms, because of their 'lack of legal residence in any State,' even though those individuals 'ought not . . . be at large because they constitute a menace to public safety'"); id. at 1961 ("Congress could . . . have reasonably concluded (as detailed in the Judicial Conference's report) that a reasonable number of such individuals would likely not be detained by the States if released from federal custody, in part because the Federal Government itself severed their claim to legal residence in any State by incarcerating them in remote federal prisons." (internal quotation marks omitted)).
231. See id.; id. at 1968 (Kennedy, J., concurring in judgment) ("Federal prisoners often lack a single home State to take charge of them due to their lengthy prison stays, so it is incumbent on the National Government to act."); id. at 1969 (Alito, J., concurring in judgment) ("The statute recognizes that, in many cases, no State will assume the heavy financial burden of civilly committing a dangerous federal prisoner who, as a result of lengthy federal incarceration, no longer has any substantial ties to any State."); id. at 1970 ("These federal prisoners, having been held for years in a federal prison, often had few ties to any State; it was a matter of speculation where they would choose to go upon release; and accordingly no State was enthusiastic about volunteering to shoulder the burden of civil commitment."). In dissent, Justice Thomas, joined by Justice Scalia, dismissed this rationale as "implausible" and, in any event, as constitutionally irrelevant. Id. at 1980-81 (Thomas, J., dissenting).
232. AMAR, supra note 14, at 107-08; see also Regan, supra note 7, at 564-65 ("[E]ven if we are faithful to the spirit of the sixth Virginia Resolution and believe in genuine limits on federal power, we are forced to construe some clause in Article I, Section 8 in a not fully literal way to fill up the gap between the enumeration of specific powers and the current needs of the national system. An expansive reading of the Commerce Clause is what we have mainly relied on to fill this gap.").
233. We also flag another potential basis for addressing interstate problems that are deemed both to be beyond the scope of the Commerce Clause and to require federal regulation. The Necessary and Proper Clause grants Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" not only "the foregoing Powers," but also "all other Powers vested by this Constitution in the Government of the United States." U.S. CONST. art. I, § 8, cl. 18. These other powers include the "judicial Power of the United States," U.S. CONST. art. III, § 1, and the "judicial Power" extends to "Controversies between two or more States," U.S. CONST. art. III, § 2. Accordingly, it might suffice to justify federal regulation of an interstate problem on the ground that a rational, meansends relationship exists between such regulation and the federal judiciary's execution of its responsibility to resolve controversies between at least two states. Such a rational relationship might exist if federal regulation obviated the need for judicial intervention. We note, but do not develop, this possible constitutional "hook" for federal regulation of noneconomic problems of collective action involving more than one state.
234. 17 U.S. (4 Wheat.) 316, 405-07, 421 (1819). For a discussion, see supra note 55 and accompanying text.
235. 130 S. Ct. 1949, 1956-58 (2010). In Comstock, the Justices debated the standard of review courts should apply to federal legislation that is defended as resting on the Necessary and Proper Clause. The majority consisting of Chief Justice Roberts and Justices Stevens, Ginsburg, Breyer, and Sotomayor stated that "in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power." Id. at 1956 (citation omitted). By contrast, Justice Kennedy would insist on "a demonstrated link in fact, based on empirical demonstration." Id. at 1967 (Kennedy, J., concurring in judgment). Justice Alito seemed to endorse Justice Kennedy's more demanding standard. Id. at 1970 (Alito, J., concurring in judgment).
236. See, e.g., Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447, 1484 (1995) (stressing this function of judicial review in federalism cases); Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1, 63 (similar); Ernest A. Young, State Sovereign Immunity and the Future of Federalism, 1999 SUP. CT. REV. 1, 51 (similar).
237. In vetoing an internal improvements bill on constitutional grounds, Madison worried about "excluding the judicial authority of the United States from its participation in guarding the boundary between legislative powers of the General and State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision." BREST ET AL., supra note 5, at 83 (citation omitted); see also, e.g., Ernest A. Young, Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism, 77 N.Y.U. L. REV. 1612, 1647-48, 1677-82 (2002) (critiquing a collective action approach to federalism as contrary to the judicial role). The theory of collective action federalism, whether or not it is used in judicial review, is similar in important respects to the European principle of "subsidiarity." See, e.g., Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795, 831-38 (1996); Mattias Kumm, Democratic Constitutionalism Encounters International Law: Terms of Engagement, in THE MIGRATION OF CONSTITUTIONAL IDEAS 256, 264-68 (Sujit Choudhry ed., 2006).
238. It is a mistake to view the Constitution or constitutional law as fully determinate. See H. JEFFERSON POWELL, A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN HISTORY AND POLITICS 6 (2002) ("However counterintuitive it may seem, the integrity and coherence of constitutional law are to be found in, not apart from, controversy."); Robert C. Post &Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CALIF. L. REV. 1473, 1501 (2007) ("[I]t is simply fantasy to imagine that law can be fully determinate or fully autonomous from popular beliefs.").
239. TOCQUEVILLE, supra note 1, at 206.
240. A more complete analysis of constitutional powers would buttress this conclusion. See, e.g., COOTER, supra note 104, at 171-239.
241. Specifically, our thick conception of the "general Welfare" can combine with either a thick or a thin understanding of "Commerce." In the former case, our thick conception of the general welfare complements Jack Balkin's and Akhil Amar's thick conception of commerce, see supra note 177 and accompanying text, because each conception reinforcesthe other in providing constitutional authorization for regulating commerce. In the latter case, our thick conception of the general welfare substitutes for a thin, economic conception of commerce by providing an independent basis for regulating noneconomic problems of collective action. While we do not choose between a thick and a thin understanding of "Commerce," we do advocate understanding the Commerce Clause and the General Welfare Clause in terms of the collective action problems that motivate this part of the Constitution.
242. The recently enacted health care legislation, Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), has provoked renewed interest in constitutional limits on the federal powers to tax and regulate. One question presently being debated in public discourse and constitutional litigation is whether the provisions in the statute concerning compulsory heath insurance fall within the scope of the commerce power. Collective action federalism provides a useful framework of analysis: the key federalism question is whether individual action by states suffices to address this issue, or whether addressing it effectively requires collective action-for example, because of the likely movement of insurance companies, sick Americans, and healthy Americans to different state regimes. Another question currently in dispute is whether the "individual mandate" in the law qualifies as a tax or a regulation for constitutional purposes. Economic theories of federalism have a lot to say about taxes and regulations, including similarities and differences between them. A future article will extend our theory of collective action federalism to this timely issue. See Cooter & Siegel, supra note 205.