Collective action federalism and its discontents

Texas Law Review

Volumn 91, Issue 7, 2013, Pages 1937-1967

  Siegel, Neil S ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84883276978     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (195)

1. 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) (cataloguing the problems with the Articles of Confederation)
2. Akhil Reed Amar, AMERICA'S CONSTITUTION: A BIOGRAPHY 44-46, 106-08 (2005) (same)
3. Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 616-23 (1999) (same).
4. See Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 121-24 (2010) (using the logic of collective action to explain the failures of the Articles of Confederation).
5. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 131-32 (Max Farrand ed., rev. ed. 1966).
6. Robert L. Stern, That Commerce Which Concerns More States Than One, 47 HARV. L. REV. 1335, 1340 (1934).
7. U.S. CONST. art. I, § 8, cls. 1, 3, 11-16.
8. See Amar, supra note 1, at 107-08
9. Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 1 (2010)
10. Cooter & Siegel, supra note 2, at 115-16
11. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554, 554-57 (1995)
12. Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision, 75 LAW & CONTEMP. PROBS. 29, 30 (2012)
13. ANDREW KOPPELMAN, THE TOUGH LUCK CONSTITUTION AND THE ASSAULT ON HEALTH CARE REFORM 42-43, 71, 155 n.7 (2013) (drawing from works by collective action theorists in arguing that the ACA's minimum coverage provision is valid Commerce Clause legislation).
14. 132 S. Ct. 2566 (2012).
15. Id. at 2612 (Ginsburg, J., dissenting in part) ("Congress'[s] intervention was needed to overcome this collective-action impasse.").
16. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 21, 25, 26, 29, and 42 U.S.C.).
17. Nat'l Fed'n of Indep. Bus., 132 S. Ct. at 2612 (Ginsburg, J., dissenting in part).
18. Id. at 2609.
19. See id. Justice Ginsburg explained why states expose themselves to economic risk by passing health care reforms on their own: States that undertake health-care reforms on their own thus risk "placing themselves in a position of economic disadvantage as compared with neighbors or competitors." [Helvering v. Davis, 301 U.S. 619, 644 (1937).]
20. See also Brief for Health Care for All, Inc., et al. as [Amici Curiae in Support of Petitioners Urging Reversal on the Minimum Coverage Provision Issue at 4, Dep't of Health & Human Servs. v. Florida, 132 S. Ct. 2566 (2012) (No. 11-398)] ("[O]ut-of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State's efforts to improve its health care system through the elimination of uncompensated care."). Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured.
21. Id. at 2612.
22. See id. at 2616.
23. Id. at 2613-14.
24. The ACA requires, among many other things, that most lawful permanent residents of the United States either maintain a minimum level of health insurance coverage (the minimum-coverage provision) or else pay a certain amount of money each year (the shared-responsibility payment). Patient Protection and Affordable Care Act ch. 48, 124 Stat. at 244-50.
25. 42 U.S.C. §§ 300gg, 300gg-1(a), 300gg-5, 300gg-11, 300gg-12 (Supp. V 2012).
26. The question of what the Commerce Clause means is separate from the question of how deferential courts should be in deciding whether Congress has acted consistently with its meaning. See, e.g., Jack M. Balkin, Fidelity to Text and Principle, in THE CONSTITUTION IN 2020 11, 20 (Jack M. Balkin & Reva B. Siegel eds., 2009) (distinguishing "the question of what the Constitution means and how to be faithful to it" from the question of "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").
27. See, e.g., Neil S. Siegel, Four Constitutional Limits that the Minimum Coverage Provision Respects, 27 CONST. COMMENT. 591, 601 (2011) (describing the nationalist position).
28. See, e.g., Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 N.Y.U. J.L. & LIBERTY 581, 604-05 (2010) (endorsing both formal distinctions identified in the text).
29. It is, of course, oversimplified to divide the universe of constitutional interpreters into "nationalists," "federalists," and "collective action theorists." Many constitutional interpreters do not fall cleanly into one category or another. Nonetheless, these stylized categories reflect reality at least roughly, and they render the analysis that follows analytically more tractable.
30. I call this theory "the Collective Action Constitution." For relevant writing, see generally Cooter & Siegel, supra note 2
31. Siegel, supra note 6
32. Siegel, supra note 17
33. For additional work I have done on this subject, see my articles cited infra notes 75, 124, 133, and 155.
34. 514 U.S. 549 (1995).
35. Cooter & Siegel, supra note 2, at 117.
36. Siegel, supra note 6, at 46.
37. See id. at 46-47 (discussing spillovers such as pollution across state lines and the cross-state economic effects of racial discrimination).
38. See id. (arguing that collective action may be required in cases of pollution and racial discrimination).
39. 317 U.S. 111 (1942).
40. 545 U.S. 1 (2005).
41. 529 U.S. 598 (2000).
42. E-mail from Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Univ. Law Sch., to author (May 21, 2011, 9:23 AM) (on file with author).
43. Siegel, supra note 6, at 46-47.
44. 379 U.S. 241 (1964).
45. 379 U.S. 294 (1964).
46. Dorf, supra note 29 (emphasis omitted).
47. E-mail from Erwin Chemerinsky, Dean and Distinguished Professor of Law, Univ. of Cal., Irvine Sch. of Law, to author (Aug. 2, 2011, 10:49 PM) (on file with author).
48. See id. (arguing that the substantial effects test is satisfied by the ACA's minimum coverage provision and questioning the necessity or utility of further justifying the provision using a collective action analysis).
49. The court often dropped the "substantiality" requirement. See, e.g., Perez v. United States, 402 U.S. 146, 150 (1971) ("The Commerce Clause reaches those activities affecting commerce.").
50. See, e.g., Hodel v. Indiana, 452 U.S. 314, 323-24 (1981) ("A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.").
51. See United States v. Lopez, 514 U.S. 549, 618-24 (1995) (Breyer, J., dissenting) (analyzing the effect of guns in and around schools on education and commerce).
52. See id. at 564-65 (majority opinion) (stating that under the Government's position, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate").
53. See id. at 624 (Breyer, J., dissenting) (arguing that the "special way in which guns and education are incompatible" and the impact of education on economic well-being made Lopez the "rare case" where noncommercial conduct has "so significant an impact upon commerce" that it is regulable under the Commerce Clause).
54. For a discussion of the Solicitor General's performance at oral argument in Lopez, see Siegel, supra note 17, at 591, 593-94.
55. Justice Breyer's performance is the more revealing of the two. Unlike the Solicitor General, a Justice has no institutional responsibility to defend the constitutionality of almost all federal laws.
56. The seminal article is Herbert Wechsler, The Political Safeguards of Federalism: The Rôle of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954), in which Professor Wechsler suggests 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."
57. See also, 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")
58. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 219 (2000) (arguing that American federalism has been protected not by "the formal constitutional structures highlighted in Wechsler's original analysis," but "by a complex system of informal political institutions (of which political parties have historically been the most important)-institutions that were not part of the original design, but have nevertheless served to fulfill its objectives")
59. 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").
60. See Lopez, 514 U.S. at 624-25 (Breyer, J., dissenting) (arguing that his position would not "expand the scope" of the Commerce Clause).
61. See, e.g., Bond v. United States, 131 S. Ct. 2355, 2366 (2011) (unanimous opinion) (stating that "action that exceeds the National Government's enumerated powers undermines the sovereign interests of States" and that such "unconstitutional action can cause concomitant injury").
62. 469 U.S. 528 (1985).
63. See, e.g., James B. Stewart, How Broccoli Landed on Supreme Court Menu, N.Y. TIMES, June 13, 2012, http://www.nytimes.com/2012/06/14/business/how-broccoli-became-a-symbol-in-the-health-care-debate.html (discussing the use of hypotheticals involving broccoli and American cars in public discourse over health care reform).
64. See generally Cooter & Siegel, supra note 2 (developing the theory of collective action federalism).
65. See, e.g., id. at 160-62 (discussing United States v. Darby, 312 U.S. 100 (1941)).
66. If unanimity were required, then there would typically be insuperable impediments to collective action by the states. For example, a distinct minority of states (or just Rhode Island) would have defeated any effort to abandon the Articles of Confederation in favor of a more powerful central government. See U.S. CONST. art. VII (providing that ratification of the Constitution by nine out of thirteen states would suffice).
67. See, e.g., Balkin, supra note 6, at 37 ("Businesses in states that do not permit discrimination may alter their employment and production policies in order to cater to consumers and clients in jurisdictions that permit (or even expect) discrimination.").
68. See supra text accompanying note 29.
69. Brief of the State of California as Amicus Curiae at 5-6, Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (No. 515), 1964 WL 81384, at 5-6 (footnotes omitted).
70. See, e.g., Celia McGee, The Open Road Wasn't Quite Open to All, N.Y. TIMES, Aug. 22, 2010, http://www.nytimes.com/2010/08/23/books/23green.html
71. Balkin, supra note 6, at 37.
72. See United States v. Morrison, 529 U.S. 598, 619-27 (2000) (prohibiting Congress from using its Section Five power to regulate private action)
73. The Civil Rights Cases, 109 U.S. 3, 46 (1883) (Harlan, J., dissenting) ("The assumption that [the Fourteenth Amendment] consists wholly of prohibitions upon State laws and State proceedings in hostility to its provisions[] is unauthorized by its language. The first clause is of a distinctly affirmative character."). Justice Harlan wrote that "[t]he citizenship thus acquired" by African-Americans, "in virtue of an affirmative grant from the nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character." This was "because the power of Congress is not restricted to the enforcement of prohibitions upon State laws or State action. It is, in terms distinct and positive, to enforce all of the provisions-affirmative and prohibitive, of the [A]mendment."
74. Morrison, 529 U.S. at 619-27 (holding that § 13981 of the Violence Against Women Act of 1994, which provided a private civil damages remedy for victims of gender-motivated violence, was beyond the scope of Congress's enforcement power under Section 5 of the Fourteenth Amendment).
75. U.S. CONST. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.
76. This observation, however, hardly suffices to refute the "state action" requirement imposed on Section Five legislation by the Civil Rights Cases and Morrison.
77. One way to demonstrate the impropriety of this requirement is to follow Justice Harlan's lead, see supra note 60, by focusing on the affirmative character of the Citizenship Clause of Section One.
78. See U.S. CONST. amend. XIII, § 2 (authorizing Congress to enforce the constitutional prohibition on slavery and involuntary servitude within the United States); amend. XIV, § 5 (authorizing Congress to enforce Section One's Citizenship Clause and guarantees of due process and equal protection); amend. XV, § 2 (authorizing Congress to enforce the constitutional prohibition on racial discrimination in voting by states or the federal government).
79. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) (Roberts, C.J.) ("Our permissive reading of these [enumerated] powers is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders.")
80. Salazar v. Buono, 130 S. Ct. 1803, 1820 (2010) ("Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.")
81. Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 808 (1995) ("[T]he Supreme Court's past record is one of general deference to national [laws].").
82. Cooter & Siegel, supra note 2, at 182 ("In order to establish the existence of a collective action problem among the states, does Congress need a plausible rationale, some evidence, or substantial evidence?").
83. U.S. CONST. art. I, § 8, cl. 3.
84. See, e.g., Nat'l Fed'n of Indep. Bus., 132 S. Ct. at 2586 (Roberts, C.J.) ("The power to regulate commerce presupposes the existence of commercial activity to be regulated.").
85. Id. at 2648 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ("[T]he decision to forgo participation in an interstate market is not itself commercial activity [I]f every person comes within the Commerce Clause power by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.")
86. Id. at 2650. My friend Randy Barnett has voiced a similar objection: Unless they voluntarily choose to engage in activity that is within Congress's power to regulate or prohibit, the American people retain their sovereign power to refrain from entering into contracts with private parties, even when commandeering them to do so may be convenient to the regulation of commerce among the several states.
87. Barnett, supra note 18, at 634.
88. For a discussion, see Cooter & Siegel, supra note 2, at 152-55, in which the authors suggest that the choice between broad and narrow definitions of interstate externalities may follow "predictable political lines."
89. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). For a good discussion of the presumption, see generally Gillian E. Metzger & Trevor W. Morrison, The Presumption of Constitutionality and the Individual Mandate, 81 FORDHAM L. REV. 1715, 1729-31 (2013).
90. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 704 (2008) (Breyer, J., dissenting) ("[L]egislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact.").
91. A majority of the Court respected the presumption to a significant extent in NFIB. For a discussion, see Neil S. Siegel, More Law than Politics: The Chief, the "Mandate," Legality, and Statesmanship, in THE HEALTH CARE CASE: THE SUPREME COURT'S DECISION AND ITS IMPLICATIONS 192-214 (Nathaniel Persily et al. eds., 2013).
92. U.S. CONST. art. I, § 8, cl. 3.
93. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2650 (2012) (Scalia, Kennedy, Thomas & Alito, JJ. dissenting) ("[The Constitution] enumerates not federally soluble problems, but federally available powers Article I contains no whatever-it-takes-to-solve-a-national-problem power.").
94. United States v. Lopez, 514 U.S. 549, 561 (1995) ("Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of a commercial transaction " (footnote omitted)); United States v. Morrison, 529 U.S. 598, 611 (2000) ("Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity, the activity in question has been some sort of economic endeavor." (citing Lopez, 514 U.S. at 559-60)).
95. See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101, 116 (2001) ("In none of the sixty-three appearances of the term 'commerce' in The Federalist Papers is it ever used to unambiguously refer to any activity beyond trade or exchange.").
96. Consider, for example, the theory of collective action federalism that I have articulated with Professor Cooter. Cooter & Siegel, supra note 2. Although the theory is consistent with the constitutional text, the theory is, first and foremost, neither textualist nor originalist nor consequentialist. It is, rather, primarily an account of an important part of the American constitutional structure. The theory seeks to interpret most of the clauses of Article I, Section 8 by drawing inferences from the relevant structures and relationships that the Constitution establishes-namely, a federal system that presupposes the continued existence of the states and that endows the federal government with authority to solve problems that the states cannot address effectively on their own. Using modern economics, collective action federalism pursues a consequentialist inquiry to identify the logic of such problems and to explain how federalism can ameliorate them.
97. Resolution VI of the Virginia Plan, see supra note 3 and accompanying text, and the recorded statements of influential Framers matter to the theory because such materials provide important evidence of the federalist structure that was planned; they offer illuminating evidence of how an important component of the constitutional machine was supposed to function in practice. The Federalist Papers, for example, are relevant to our structural account even though they had little impact on the ratification debate.
98. It might have turned out that this original plan for the proper interpretation of Section 8 ceased to make sense over time. But that is not what happened regarding the distinction between individual and collective action by states; it continues to make good sense of this part of the American constitutional structure today, as modern economics helps to confirm. Consequences matter to collective action federalism not because its structural account is instrumentalist all the way down, but because structural accounts are always in part consequentialist, regardless of how they are presented.
99. See, e.g., Balkin, supra note 6, at 15-18.
100. Jack M. Balkin, LIVING ORIGINALISM 138-82 (2011) (defining "commerce" as "intercourse").
101. Amar, supra note 1, at 107.
102. 22 U.S. (9 Wheat.) 1 (1824).
103. Id. at 189-90
104. Marshall reasoned: Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter.
105. See, e.g., Randy E. Barnett, Jack Balkin's Interaction Theory of "Commerce," 2012 U. ILL. L. REV. 623, 649 (concluding that "[c]ommerce can mean a good deal more than trade-and the fact that it includes navigation is important evidence that it did-while meaning a good deal less than interaction").
106. See generally Cooter & Siegel, supra note 2 (focusing on the distinction between individual and collective action by states, not on the distinction between economic and noneconomic conduct).
107. See, e.g., Siegel, supra note 17, at 594 (discussing four constitutional limits on the scope of the Commerce Clause, including a discussion of collective action limits and limits preventing congressional regulation of noneconomic conduct).
108. See id. (concluding that the ACA's minimum coverage provision respects several actual or potential constitutional limits on the scope of the Commerce Clause)
109. Siegel, supra note 6, at 34 (concluding that the minimum coverage provision is constitutional because it addresses economic problems of collective action facing the states).
110. Commerce Definition, GOOGLE SEARCH, http://www.google.com (search for "commerce definition").
111. Commerce, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/commerce
112. See 3 THE OXFORD ENGLISH DICTIONARY 552 (2d ed. 1989) (defining "commerce" as, inter alia, (1) "Exchange between men of the products of nature or art; buying and selling together; trading; exchange of merchandise"; (2) "Intercourse in the affairs of life; dealings"; (3) "Intercourse of the sexes"; (4) "Interchange (esp. of letters, ideas, etc.)"; and (5) "Communication, means of free intercourse").
113. See 15 U.S.C. § 1512 (2006) ("It shall be the province and duty of [the Department of Commerce] to foster, promote, and develop the foreign and domestic commerce, the mining, manufacturing, and fishery industries of the United States").
114. U.S. CONST. art. I, § 8, cl. 15 ("The Congress shall have Power. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions").
115. "The Congress shall have Power... To exercise... Authority... for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings". This provision obviously does not refer to reading material.
116. Id. art. II, § 4 ("The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.").
117. See Amar, supra note 1, at 222 (observing that "'Misdemeanor' in Article II was best read to mean misbehavior in a general sense as opposed to a certain kind of technical criminality").
118. U.S. CONST. art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government"). This provision obviously does not refer to one of the two major political parties in the United States in modern times.
119. Id. ("The United States... shall protect each of [the States]... against domestic Violence."). This provision obviously does not refer to spousal abuse.
120. Id. amend. XIV, § 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."). Today, "reside" is often used in distinction from "domicile."
121. See Balkin, supra note 82, at 37 (discussing the examples of "domestic Violence" and "Republican").
122. See Gonzales v. Raich, 545 U.S. 1 (2005) (holding that the Commerce Clause allows Congress to regulate the personal possession and use of marijuana for medicinal purposes pursuant to state law authorizing such possession and use).
123. See Wickard v. Filburn, 317 U.S. 111 (1942) (holding that the Commerce Clause allows Congress to regulate wheat grown for personal consumption or use).
124. Raich, 545 U.S. at 18.
125. See, e.g., id. at 19. The Court alluded to a collective action problem: [O]ne concern prompting inclusion of wheat grown for home consumption in [the regulation reviewed in Wickard] was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. Id. (citation omitted).
126. Cooter & Siegel, supra note 2, at 184 ("However adequate it may (or may not) be for purposes of defining 'Commerce' in Clause 3, the distinction between economic and noneconomic activity seems mostly irrelevant to the problems of federalism; it does not explain when an activity exists 'among the several States' and when it exists within a state.")
127. Siegel, supra note 6, at 48 ("Even if the economic-noneconomic categorization can suffice as a rough definition of 'Commerce,' it cannot define when such commerce is 'among the several States' and when it is internal to one state.").
128. This point is stressed in Cooter & Siegel, supra note 2, at 164.
129. I offer no view here of whether this conclusion of five Justices is "holding" or "dicta." The answer, it seems to me, turns on whether Chief Justice Roberts was entitled to apply the "classical" canon of constitutional avoidance instead of the "modern" canon. For a discussion, see Siegel, supra note 75, at 198-200.
130. See Siegel, supra note 6, at 41-54.
131. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012) (Roberts, C.J.) ("The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now.")
132. id. at 2649 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ("[I]t must be activity affecting commerce that is regulated, and not merely the failure to engage in commerce Our test's premise... rests upon the Constitution's requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything.").
133. Similarly, more than collective action logic is needed to persuasively reject the Court's anticommandeering principle, another independent limit on the commerce power that the Court has imposed even when the federal law at issue was obviously directed at solving serious, multistate collective action problems. See New York v. United States, 505 U.S. 144, 175-76 (1992) (invalidating provisions of a 1985 federal law that required states either to take title to low-level radioactive waste produced within their borders or else to pass certain regulations governing disposal of the waste, on the ground that both options involved unconstitutional commandeering of the states' legislative and administrative apparatuses).
134. New York and Printz v. United States, 521 U.S. 898 (1997), which also enforced the anticommandeering principle, are nonetheless reconcilable with collective action approaches to the Commerce Clause because such approaches do not reject all other independent limits on congressional power.
135. See, e.g., Seven-Sky v. Holder, 661 F.3d 1, 16 (D.C. Cir. 2011). Judge Silberman wrote: At the time the Constitution was fashioned, to "regulate" meant, as it does now, "[t]o adjust by rule or method," as well as "[t]o direct." To "direct," in turn, included "[t]o prescribe certain measure[s]; to mark out a certain course," and "[t]o order; to command." In other words, to "regulate" can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term "commerce" limited to only existing commerce. Id. (footnotes omitted).
136. See, e.g., Cooter & Siegel, supra note 2, at 153 n.143 ("An interstate externality refers to interdependence in the utility functions of individuals in at least two states.")
137. Id. at 152, 153 n.143, 172-73.
138. Id. at 152-53.
139. See supra note 41 and accompanying text.
140. I also referenced Justice Breyer's Lopez dissent in critiquing the substantial effects test, but this does not imply that the substantial effects test is the same as a test that turns on interstate externalities. While substantial effects on interstate commerce are potential evidence of interstate spillover effects, the two kinds of effects are conceptually distinct. Externalities are limited to effects that are external to the market. They are external to the market because they are unpriced. The Court's current doctrine is thus overinclusive.
141. See generally Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1 (2004) (distinguishing questions of constitutional meaning from the formulation of implementing doctrines).
142. Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 159 (2001) ("[T]he Court's attention to where the causal chain starts-i.e., with whether the regulated activity is itself 'commercial' or 'non-commercial'-seems to stem from the Court's reluctance to attempt to draw lines at any later point in the chain of economic interactions.").
143. Cooter & Siegel, supra note 2, at 164.
144. See, e.g., Bond v. United States, 131 S. Ct. 2355, 2364 (2011) ("Federalism... protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.").
145. U.S. CONST. art. I, § 8, cl. 1.
146. 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).
147. Id. at 1229-30.
148. For greater specification of what it means for a federal exaction to be relatively modest or very high in amount, see generally id. The key distinction is between dampening conduct and preventing conduct. To make this determination, we counsel looking primarily to the material characteristics of the exaction: whether it is high relative to the benefit of almost everyone from engaging in the assessed conduct, and whether the amount one must pay increases with intentionality and repetition. Secondarily, we advise looking to the expressive form of the exaction.
149. See Neal Kumar Katyal, Foreword: Academic Influence on the Court, 98 VA. L. REV. 1189, 1190-91 (2012).
150. See generally Cooter & Siegel, supra note 124.
151. In other words, Section 8 as a whole gives Congress the tools it requires to solve all multistate collective action problems. But each enumerated power in Section 8 does not give Congress the power to address every conceivable collective action problem facing the states.
152. See Cooter & Siegel, supra note 124, at 1204-10 (providing examples from different eras of American history).
153. See id. at 1224.
154. See supra text accompanying notes 124-27.
155. There is also an anticoercion limit on the scope of the spending power, which I explore elsewhere. See generally Robert D. Cooter & Neil S. Siegel, Not the Power to Destroy or Dragoon: Unity in Taxing and Spending Under the General Welfare Clause (May 2013) (unpublished manuscript) (on file with author).
156. See, e.g., Gonzales v. Raich, 545 U.S. 1, 9 (2005) (upholding a criminal provision of the Controlled Substances Act under the Commerce Clause)
157. Cooter & Siegel, supra note 2, at 152.
158. For a discussion, see id. at 152-53.
159. Balkin, supra note 6, at 44
160. Cooter & Siegel, supra note 2, at 153-54 (reserving judgment on this question).
161. See, e.g., Michele Landis Dauber, The Sympathetic State, 23 LAW & HIST. REV. 387, 404-06 (2005) (recounting instances in American history where public support for humanitarian relief initiatives was used in arguments countering constitutional objections to the proposed measures).
162. Amartya Sen, The Impossibility of a Paretian Liberal, 78 J. POL. ECON. 152, 155 (1970).
163. The book that Professor Sen used in his example is Lady Chatterly's Lover by D.H. Lawrence. Id. 140. Specifically, Professor Sen demonstrated that preferences about other people's preferences (second-order preferences) undermine the utility of Pareto efficiency as a normative criterion. See at 157 n.6 ("The difficulties of achieving Pareto optimality in the presence of externalities are well known. What is at issue here is the acceptability of Pareto optimality as an objective in the context of liberal values, given certain types of externalities.").
164. Cooter & Siegel, supra note 2, at 153 & n.144
165. See, e.g., South Dakota v. Dole, 483 U.S. 203, 207 n.2 (1987) ("The level of deference to the congressional decision is such that the Court has more recently questioned whether 'general welfare' is a judicially enforceable restriction at all." (citing Buckley v. Valeo, 424 U.S. 1, 90-91 (1976) (per curiam))).
166. 483 U.S. 203 (1987).
167. Id. at 211-12. The Dole Court identified four constitutional limits on conditional federal spending: (1) the spending must be for the general welfare; (2) the condition must be clearly stated; (3) the condition must be related to the purpose(s) of the federal spending program; and (4) the condition must not violate an independent constitutional limit.
168. Id. at 207-08.
169. Id. at 207 ("Thus, objectives not thought to be within Article I's 'enumerated legislative fields[]' may nevertheless be attained through the use of the spending power and the conditional grant of federal funds." (citation omitted)).
170. Id. at 206.
171. See Brian Galle, Federal Grants, State Decisions, 88 B.U. L. REV. 875, 883 n.34 (2008) (arguing that while the Spending Clause "might allow Congress to enact legislation that would go beyond the limits of its other main sources of authority," still "Congress must literally pay a price, both in treasury dollars and political capital, for such expansions")
172. U.S. CONST. art. I, § 8, cl. 1.
173. For a discussion, see Cooter & Siegel, supra note 2, at 119.
174. The Dole Court, at the end of its opinion, mentioned that a "financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" Dole, 483 U.S. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)). But the Court upheld the drinking-age condition on the ground that Congress was offering only "relatively mild encouragement to the States." Id. Twenty-five years later, in NFIB, the Court held for the first time that a condition attached to a federal funding program was unconstitutionally coercive, with the Justices fracturing three ways on whether or why the condition was coercive. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2608, 2641-42, 2662-66 (2012).
175. For a theory of coercion in conditional spending cases that seeks to bring some clarity to this newly important constitutional question, see generally Cooter & Siegel, supra note 133.
176. Helvering v. Davis, 301 U.S. 619, 641 (1937).
177. See, e.g., New York v. United States, 505 U.S. 144, 166 (1992) ("Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests.").
178. See Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629, 1644 (2006). In this article, I identify a cost-internalization rationale for the anticommandeering principle: Anticommandeering doctrine vindicates federalism values... to the extent that it forces the federal government to internalize more of the financial and accountability costs associated with regulating. As law and economics posits, actors that do not internalize the full costs of their behavior tend to engage in too much of the behavior.
179. See id. at 1632. I question the Court's accountability rationale for anticommandeering doctrine: Even after factoring in search costs and rational ignorance, it seems likely that citizens who pay attention to public affairs and who care to inquire will be able to discern which level of government is responsible for a government regulation, and citizens who do not care to inquire may be largely beyond judicial or political help on the accountability front.
180. Cf. Cooter & Siegel, supra note 2, at 153-54 (asking whether "the standard of 'willingness to pay' [could] achieve the same success in constitutional law [as in cost-benefit analysis] by limiting the feelings that count as interstate externalities").
181. United States v. Lopez, 514 U.S. 549, 551 (1995).
182. Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, § 1702, 104 Stat. 4789, 4844 (codified as amended at 18 U.S.C. § 922(q) (2006)).
183. See, e.g., Lopez, 514 U.S. at 581 (Kennedy, J., concurring) ("Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds.").
184. See supra notes 73-75 and accompanying text.
185. In constitutional litigation, the federal government should be permitted to supplement the record compiled by Congress, particularly for statutes enacted before judicial imposition of evidentiary demands.
186. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
187. Katzenbach v. McClung, 379 U.S. 294 (1964), the Court held that the Commerce Clause justified provisions of the Civil Rights Act of 1964 that prohibited racial discrimination by hotels and restaurants.
188. See supra notes 54-59 and accompanying text
189. For a more detailed collective action analysis of the ACA, see generally Siegel, supra note 6.
190. Id. at 38-39.
191. Id. at 33.
192. See supra note 15.
193. See generally Siegel, supra note 6.
194. United States v. Lopez, 514 U.S. 549, 566 (1995)
195. Id. (internal quotation marks omitted). Rehnquist then quoted McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824).