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Commerce by Another Name: Lopez, Morrison, SWANCC, and Gibbs

April 2001

Citation: ELR 10413

Author: Christy H. Dral and Jerry J. Phillips

The Constitution of the United States gives Congress the authority to "regulate Commerce . . . among the several States."1 From the beginning of judicial review, the U.S. Supreme Court has struggled over defining how far that power extends.2 Until recently, it seemed established that the Commerce Clause provided an extremely broad and expansive grant of power to Congress.3 However, with the 1995 decision of United States v. Lopez4 and the 2000 decision of United States v. Morrison,5 the extent of Congress' power to regulate pursuant to the Commerce Clause has been called into question. In these two cases, the Court struck down legislation as being outside the limits of Congress' authority under the Commerce Clause.6 While the Court may have had the laudable goal of restraining Congress from enacting legislation outside of its authority, the standards announced in Lopez and Morrison are too imprecise to provide any sort of basis for a credible and predictable limitation on congressional power. Moreover, the clear majority of federal legislation is enacted pursuant to the Commerce Clause, so the potential impact of Lopez and Morrison is far-reaching and disturbing. In this Article, we will attempt to explain the recent cases of Lopez and Morrison and show how the standards announced in these two decisions will prove to be unworkable.

Christy H. Dral is a law student, Jerry J. Phillips a professor of law, both at the University of Tennessee-Knoxville. Another version of this Article will appear in the Tennessee Law Review, see Christy H. Dral & Jerry J. Phillips, Commerce by Another Name: The Impact of United States v. Lopez and United States v. Morrison, 68 TENN. L. REV. (forthcoming 2001).

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