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Centralization and the Commerce Clause

November 2001

Citation: ELR 11334

Author: Adrian Vermeule

There is a crucial, although implicit, empirical assumption in the debate about federal judicial review under the affirmative U.S. Commerce Clause. The assumption, indulged by many different camps in the debate, is that increasing the stringency of Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states.1 I want to suggest that, on equally plausible empirical assumptions, increasing Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization may have picked a course of action with perverse effects; they may have picked the wrong team. And those who favor Commerce Clause review because they believe the U.S. Constitution commands it should take into account that increased centralization may be a cost of their position.

This view has important consequences for environmental law and policy. Many leading environmental statutes are authorized, if at all, by Congress' power under the Commerce Clause, and many of the most important Commerce Clause cases have involved environmental statutes of one sort or another. Examples are the Supreme Court's recent decision restricting the U.S. Army Corps of Engineers' authority under the Clean Water Act (CWA) on the ground that a broader reading of the statute would have posed serious Commerce Clause questions,2 and the Fourth Circuit's recent heated debate about Congress' Commerce Clause authority to regulate endangered species.3 The view advanced here suggests that proponents of national environmental regulation have less to fear from the revival of Commerce Clause review than is usually thought, while proponents of state authority have less to gain.

The author is a Professor of Law, University of Chicago. This Dialogue is adapted from Adrian Vermeule, Does Commerce Clause Review Have Perverse Effects?, 46 VILL. L. REV. (forthcoming 2001) (presented at the Villanova Law Review symposium, New Voices on the New Federalism, Oct. 28, 2000). Thanks to Jack Goldsmith, Daryl Levinson, Eric Posner, Rachel Schowalter, David Strauss, and Cass Sunstein for helpful comments. Jamil Jaffer and Stephanie Morris provided excellent research assistance.

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