Distinguishing the "truly national" From the "truly local": Customary allocation, commercial Activity, and collective action

Duke Law Journal

Volumn 62, Issue 3, 2012, Pages 797-828

  Siegel, Neil S ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84872241456     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (103)

1. United States v. Morrison, 529 U.S. 598, 617-18 (2000) (citations omitted).
2. U.S. CONST. art. I, § 8, cl. 3.
3. See generally Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 117 (2010) ("Article I, Section 8 of the new Constitution gave Congress additional powers to address collective action problems.").
4. One could identify various political safeguards of federalism as limiting the scope of the commerce power
5. See, e.g., JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 2 (1980) (arguing that "state interests are forcefully represented in the national political process").
6. Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 360 (noting that the judicial focus in vindicating federalism is now "on the nature of the political process responsible for making the federalism-related decisions").
7. 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, 558 (1954) (suggesting that "the national political process in the United States. .. is intrinsically well adapted to retarding or restraining new intrusions by the center on the domain of the states"). The inquiry in this Essay, however, focuses on judicially enforceable limits.
8. For an illuminating discussion of the rise and fall of dual federalism, see generally Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 139-50 (2001).
9. Morrison, 529 U.S. at 618.
10. For a discussion, see infra Part II
11. See Gonzales v. Raich, 545 U.S. 1, 35 (2005) ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." (quoting Morrison, 529 U.S. at 610) (internal quotation marks omitted)); United States v. Lopez, 514 U.S. 549, 560 (1995) (same). The Court's pre-Lopez doctrine, which asked whether Congress could rationally have concluded that the regulated subject matter substantially affects interstate commerce in the aggregate, is probably not an approach to limiting the scope of the commerce power. It seems to reflect a regime in which there are no judicially enforceable limits on the commerce power.
12. See, e.g., Morrison, 529 U.S. at 617-18 (distinguishing between subjects that are "truly national" and those that are "truly local").
13. For a discussion, see infra Part III
14. See generally Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 23-31 (2010).
15. Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 YALE L.J. ONLINE 1, 14-18 (2011), http://yalelawjournal.org/images/pdfs/981.pdf (explaining why individual action by states cannot solve the problems addressed by the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029).
16. Donald H. Regan, How To Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995) (arguing that the Commerce Clause should be understood to authorize Congress to address problems requiring action by multiple states).
17. Neil S. Siegel, Four Constitutional Limits That the Minimum Coverage Provision Respects, 27 CONST. COMMENT. 591, 603-09 (2011) [hereinafter Siegel, Four Constitutional Limits] (identifying the distinction between individual and collective action by states as a principled, judicially enforceable limit on the commerce power).
18. Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision, 75 LAW & CONTEMP. PROBS. 29 [hereinafter Siegel, Free Riding on Benevolence] (identifying how the ACA addresses multistate collective action problems).
19. Robert L. Stern, That Commerce Which Concerns More States Than One, 47 HARV. L. REV. 1335 (1934) (examining the proceedings of the Philadelphia Convention and concluding that the drafting history of Article I, Section 8 helps to justify federal commerce power in instances of separate state incompetence).
20. See, e.g., Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 616-23 (1999) (arguing that, under the Articles of Confederation, "many of the Union's difficulties could not have been met without more ambitious changes in the structure of the government" and that the Commerce Clause was one such change).
21. 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) (identifying national finances, foreign relations, and westward expansion as instances in which the Articles of Confederation failed to give Congress adequate power to address important national issues).
22. See JAMES MADISON, Vices of the Political System of the United States, in JAMES MADISON: WRITINGS 69, 69-70 (Jack N. Rakove ed., 1999) (lamenting the failure of states to comply with requisitions under the Articles of Confederation, their encroachments on federal authority and on the rights of other states, and their violations of treaties).
23. See, e.g., Baldwin v. G.A.F. Seeling, Inc., 294 U.S. 511, 523 (1935) ("[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.").
24. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 131-32 (Max Farrand ed., rev. ed. 1966).
25. U.S. CONST. art. I, § 8, cl. 3.
26. see also Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. PA. L. REV. 2341, 2342 (1996) ("The two justifications most prominently offered. .. for environmental regulation at the federal level focus on the existence of a 'race to the bottom' and of interstate externalities.").
27. See U.S. CONST. art. I, § 8, cl. 18 (authorizing Congress to pass laws that are "necessary and proper for carrying into Execution" Congress's other enumerated powers).
28. United States v. Lopez, 514 U.S. 549 (1995).
29. United States v. Morrison, 529 U.S. 598 (2000).
30. Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q) (Supp. V 1994) (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 Lopez, 514 U.S. 549.
31. Violence Against Women Act of 1994, Pub. L. No. 103-322, tit. IV, §§ 40001-40703, 108 Stat. 1902 (codified as amended in scattered sections of 18 & 42 U.S.C.) invalidated in part by Morrison, 529 U.S. 598.
32. 42 U.S.C. § 13981(c) (1994) (authorizing victims of gender-motivated violence to sue their assailants for money damages in federal court), invalidated by Morrison, 529 U.S. 598.
33. Lopez, 514 U.S. at 580 (Kennedy, J., concurring).
34. Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1328 (11th Cir. 2011), aff'd in relevant part, rev'd in part sub nom. NFIB, 132 S. Ct. 2566 (2012).
35. 26 U.S.C. § 5000A(b)(1) (Supp. IV 2011).
36. Florida, 648 F.3d at 1303.
37. [18] U.S.C. (2006).
38. See, e.g., No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of 20 U.S.C.); Elementary and Secondary Education Act of 1965, Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 28 & 42 U.S.C.).
39. See generally Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297 (1998) (noting the significant involvement of the federal government in regulating the family since Reconstruction).
40. United States v. Lopez, 514 U.S. 549, 564 (1995); United States v. Morrison, 529 U.S. 598, 615-16 (2000).
41. see also JACK M. BALKIN, LIVING ORIGINALISM 172 (2011) ("[T]he federal government has regulated family law since at least Reconstruction, and it has regulated education heavily in the last fifty years. And, of course, the federal government has attacked crime since the beginning of the Republic and with increasing frequency in the twentieth century." (footnote omitted)).
42. Florida, 648 F.3d at 1333-34 (Marcus, J., concurring in part and dissenting in part) (discussing the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. No. 93-406, 88 Stat. 829 (codified as amended in scattered sections of 26 & 29 U.S.C.); Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82 (1986) (codified as amended in scattered sections of the U.S. Code); and Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, & 42 U.S.C.)).
43. Seven-Sky v. Holder, 661 F.3d 1, 19 (D.C. Cir. 2011).
44. Brief for Petitioners at 3-4, U.S. Dep't of Health & Human Servs. v. Florida, 132 S. Ct. 2566 (No. 11-398) (2012).
45. For an account of the history, see generally DAVID BLUMENTHAL & JAMES A. MORONE, THE HEART OF POWER: HEALTH AND POLITICS IN THE OVAL OFFICE 99-130 (2009).
46. For an argument that Congress may use its tax power for some regulatory purposes in addition to revenue-raising purposes, see generally Robert D. Cooter & Neil S. Siegel, Not the Power To Destroy: An Effects Theory of the Tax Power, 98 VA. L. REV. 1195 (2012).
47. [26] U.S.C. § 106 (2006 & Supp. IV 2011).
48. See 42 U.S.C. §§ 300gg, 300gg-1, 300gg-3(a), 300gg-11, 300gg-12 (Supp. IV 2011).
49. See United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 553 (1944) ("No commercial enterprise of any kind which conducts its activities across state lines has been held to be wholly beyond the regulatory power of Congress under the Commerce Clause. We cannot make an exception of the business of insurance."); see also 42 U.S.C. § 18091(3) (Supp. IV 2011) (citing South-Eastern Underwriters Ass'n as authority for the proposition that "insurance is interstate commerce subject to Federal regulation").
50. NFIB, 132 S. Ct. 2566, 2628 (2012) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (pointing to Medicare, Medicaid, ERISA, and HIPAA).
51. NFIB, 132 S. Ct. at 2643, 2659, 2661-62 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).
52. Defense of Marriage Act (DOMA), 1 U.S.C. § 7, 28 U.S.C. § 1738C (2006).
53. Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 12 (1st Cir. 2012). The court in Massachusetts held that section 3(a) of the federal DOMA, 1 U.S.C. § 7, violates equal protection principles, Massachusetts, 682 F.3d at 15. Section 3 defines "marriage" for purposes of federal law and excludes same-sex marriage from this definition. DOMA § 3, 1 U.S.C. § 7.
54. The court in Massachusetts raised its level of scrutiny based on its federalism concern that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation." Massachusetts, 682 F.3d at 12. The court did not persuasively explain the propriety of its novel use of federalism concerns to change the level of scrutiny under equal protection. The decision does, however, nicely illustrate that invocations of regulatory custom can cut both ways ideologically. There is no reason to think it is less problematic when used in the service of certain ends than it is when used in the service of others.
55. Is Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), an immigration case (federal) or a case involving the licensing of in-state businesses (state)? Is AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), a case involving arbitration (federal) or consumer protection (state)?.
56. For a discussion of the federal and state aspects of these cases, see Ernest A. Young, "The Ordinary Diet of the Law": The Presumption Against Preemption in the Roberts Court, 2011 SUP. CT. REV. 253, 336.
57. For a more recent illustration, see Arizona v. United States, 132 S. Ct. 2492, 2525 (2012) (Alito, J., concurring in part and dissenting in part), which characterizes "employment regulation, even of aliens unlawfully present in the country, [a]s an area of traditional state concern."
58. See generally New York v. United States, 326 U.S. 572 (1946) (rejecting the existing tax immunity doctrine as resting on an unworkable line between traditional/essential and nontraditional/nonessential state functions); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (overruling National League of Cities v. Usery, 426 U.S. 833 (1976), which prohibited regulation of "states qua states" in areas of traditional governmental functions).
59. Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 206.
60. Florida ex rel. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1303 (11th Cir. 2011), aff'd in part, rev'd in part sub nom. NFIB, 132 S. Ct. 2566 (2012).
61. For example, to use race as a factor in student admissions or school assignment decisions is necessarily to use race decisively in close cases, potential appearances notwithstanding
62. For discussions, see generally 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 (2007).
63. Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 DUKE L.J. 781 (2006).
64. For the legislative story of the Civil Rights Act of 1964, see WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 2-23 (4th ed. 2007).
65. See generally Richard A. Epstein, The Path to The T. J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. LEGAL STUD. 1, 4 (1992) ("[G]iven the imperfections of the legal system, the conventional wisdom that places cost-benefit analysis first and custom second [in the law of negligence] is incorrect. .. .").
66. STAFF OF THE WASH. POST, LANDMARK: THE INSIDE STORY OF AMERICA'S NEW HEALTH-CARE LAW AND WHAT IT MEANS FOR US ALL 64 (2010).
67. see also CHARLES E. PHELPS, HEALTH ECONOMICS 530 (4th ed. 2010) ("In constant dollars per capita, total spending is estimated to have increased more than 8-fold between 1960 and 2010, and the comparable spending increase for drugs is almost 10-fold for that period.").
68. United States v. Morrison, 529 U.S. 598, 618 (2000).
69. Separation-of-powers questions are different from problems of constitutional federalism in important ways. For example, because courts are more reluctant to intervene in separation-of-powers controversies, custom may be among the few legal materials available for consultation in debating issues of executive or congressional power. In addition, the idea of "acquiescence" is not in play in Commerce Clause cases, but it is a major theme in separationof-powers arguments that invoke custom.
70. See generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. (forthcoming 2012).
71. See, e.g., Seven-Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 2011) ("Appellants'[] related argument is that upholding the mandate would turn the Commerce Clause into a federal police power, at the expense of state sovereignty. But the distinctions that separate national and local spheres have been understood as those between intrastate and interstate commerce, and between traditional, non-economic areas of state concern and those involving commerce.").
72. Lopez, 514 U.S. at 580 (Kennedy, J., concurring).
73. Thomas More Law Ctr. v. Obama, 651 F.3d 529, 565 (6th Cir. 2011) (Sutton, J., concurring in part and delivering the opinion of the court in part).
74. In Lopez, Chief Justice Rehnquist wrote for the Court that Congress may use the commerce power (1) to "regulate the use of the channels of interstate commerce"; (2) "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"; and (3) "to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Lopez, 514 U.S. at 558-59 (citations omitted).
75. For scholarship that stresses the virtues of formalism in Commerce Clause jurisprudence, see generally Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & LIBERTY 581 (2010).
76. Stephen G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995).
77. Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387 (1987).
78. Robert G. Natelson, The Legal Meaning of "Commerce" in the Commerce Clause, 80 ST. JOHN'S L. REV. 789 (2006).
79. U.S. CONST. art. I, § 8, cl. 3.
80. United States v. Morrison, 529 U.S. 598, 618 (2000).
81. For an illuminating exploration of the tension between doctrinal rules and background justifications in the context of First Amendment theory and doctrine, see generally Frederick Schauer, The Second-Best First Amendment, 31 WM. & MARY L. REV. 1 (1989).
82. Cf. MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 49-51 (1987) (distinguishing the "real operative rule" from the "nominal rule" based on the exceptionality of total rule enforcement).
83. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1701 (1976) (arguing that rules become standards when "judges [are] simply unwilling to bite the bullet, shoot the hostages, break the eggs to make the omelette and leave the passengers on the platform").
84. Kathleen M. Sullivan, The Supreme Court, 1991 Term- Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 63 (1992) ("[D]ecisionmakers [may] spend time inventing end-runs around [rules] because they just cannot stand their over- or under-inclusiveness.").
85. See Gonzales v. Raich, 545 U.S. 1, 45 (2005) (O'Connor, J., dissenting) ("What is the relevant conduct subject to Commerce Clause analysis in this case?").
86. See, e.g., United States v. Morrison, 529 U.S. 598, 643 (2000) (Souter, J., dissenting) ("It was obvious in Wickard that growing wheat for consumption right on the farm was not 'commerce' in the common vocabulary, but that did not matter constitutionally. .. ." (footnote omitted)).
87. Raich, 545 U.S. at 22 (majority opinion); Wickard v. Filburn, 317 U.S. 111, 128-29 (1942).
88. Gonzales v. Raich, 545 U.S. 1 (2005).
89. Wickard v. Filburn, 317 U.S. 111 (1942).
90. Raich, 545 U.S. at 18.
91. 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)).
92. Alternatively, these judges conceive of "Commerce" in terms that transcend "commercial activity"-indeed, in terms that transcend even forms of human interaction outside of markets
93. Cf. 42 U.S.C. § 264(a) (2006) (authorizing the Surgeon General to make and enforce regulations "necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession").
94. For a discussion of this federal quarantine statute and related measures, see generally KATHLEEN S. SWENDIMAN & JENNIFER K. ELSEA, CONG. RESEARCH SERV., RL33201, FEDERAL AND STATE QUARANTINE AND ISOLATION AUTHORITY (2007), available at www.fas.org/sgp/crs/misc/RL33201.pdf.
95. See Transcript of Oral Argument at 21-22, 29-30, United States v. Comstock, 130 S. Ct. 1949 (2010) (No. 08-1224) (suggesting, in Justice Scalia's and Justice Kennedy's responses to the Solicitor General's hypothetical, that if a communicable disease among prisoners threatened the larger population, the federal government could intervene under the commerce power to detain infected prisoners beyond the terms of their sentences if the states were unable to address the problem adequately).
96. Mark A. Hall, Constitutional Mortality: Precedential Effects of Striking the Individual Mandate, 75 LAW & CONTEMP. PROBS. 107, 107 (2012).
97. The reasonableness test is derived from contemporary Commerce Clause doctrine, which is generally-but not wholly-deferential. See, e.g., Thomas More Law Ctr. v. Obama, 651 F.3d 529, 564 (6th Cir. 2011) (Sutton, J., concurring in part and delivering the opinion of the court in part) ("The courts do not apply strict scrutiny to commerce clause legislation and require only an 'appropriate' or 'reasonable' 'fit' between means and ends." (quoting Comstock, 130 S. Ct. at 1956-57)).
98. I thank my Duke colleague Margaret Lemos for bringing this point to my attention
99. For Burkean arguments that past practice may embody collective wisdom, see generally, for example, Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353 (2006).
100. Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. REV. 619 (1994
101. Cf. United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring) (referencing "an area to which States lay claim by right of history and expertise" (emphasis added)).
102. See, e.g., JAMES SALZMAN & BARTON H. THOMPSON, JR., ENVIRONMENTAL LAW AND POLICY 22 (3d ed. 2010) ("Air pollution, water pollution, and wildlife certainly pay no heed to state. .. borders, with the result that often the generator of the pollution is politically distinct from those harmed.").
103. See, e.g., AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 107-08 (2005) ("Without 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.").