Distinguishing the “Truly National” from the “Truly Local”: Customary Allocation, Commercial Activity, and Collective Action

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Commerce Clause, collective action federalism, commercial activity, interstate commerce, Patient Protection and Affordable Care Act, ACA, state regulation


This Essay defends two claims about different methods of defining the expanse and limits of the Commerce Clause. First, approaches that privilege traditional subjects of state regulation are unworkable and undesirable. The approaches are unworkable in light of the frequency with which the states and the federal government regulate the same subject matter in our modern world of largely overlapping state and federal legislative jurisdiction. Either a regulated area is never of exclusive state concern, or else the answer will turn on arbitrary (and increasingly narrow) definitions of the breadth of the area at issue. Moreover, if “traditional” is redefined to mean a subject of predominant, though not exclusive, state concern, then the inquiry will often prove indeterminate.

In addition to being unworkable, approaches that privilege traditional subjects of state regulation are undesirable. They are undesirable because the question of customary allocation is unrelated to a principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states.

These problems are evident in the way that some federal judges have invoked regulatory custom in litigation over the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act. The areas of “health insurance” and “health care” are not of exclusive state concern, and it is impossible to lose—or to win—a competition requiring skillful lawyers or judges to describe them as more state than federal, or more federal than state.

More promising are the approaches that view congressional authority as turning on either commercial activity or collective action problems facing the states. My second claim is that these two approaches have advantages and disadvantages, and that the choice between them exemplifies the more general tension between applying rules and applying their background justifications. I have previously defended a collective-action approach to Article I, Section 8. My primary purpose here is to clarify the jurisprudential stakes in adopting one method or the other, and to identify the problems that advocates of each approach must address.

Library of Congress Subject Headings

Federalism, Interstate commerce--Law and legislation--United States., Constitutional law--United States., Patient Protection and Affordable Care Act, Commerce, State governments, Interstate commerce, United States