The Constitutional Exercise of the Federal Police Power: A Functional Approach to Federalism
The Employee Polygraph Protection Act of 19881 (Polygraph Act) prohibits the use of polygraph examinations by private employers actively participating in commerce or producing goods for interstate commerce. Prior to this federal action, forty-one states had addressed the issue of employer use of polygraph examinations. Twelve states and the District of Columbia prohibit employer use of polygraph tests altogether. Of the remaining states, some require licensing of examiners and others regulate the circumstances under which an employer may require polygraph examination of an employee. According to the legislative history, federal legislation is necessary because state regulations are ineffective: existing state statutes are not enforced and employers circumvent state laws by pressuring employees into volunteering for the tests or by administering the tests in states without regulations.4 Congress concluded that a uniform national policy was needed to eliminate the use of polygraph examinations in the workplace.'The Polygraph Act is justified as an exercise of the power granted to Congress by the interstate commerce clause of the United States Constitution.' Modern commerce clause doctrine has become known as the "rational basis" test because it permits federal regulation of any activity that Congress reasonably concludes has a substantial effect on interstate commerce.' Since 1937, when the United States Supreme Court began using the rational basis test, only one legislative effort has been held to be beyond the scope of the federal commerce power, and that holding was recently overruled.8 In both theory and practice the interstate commerce clause has evolved into the primary source of federal power over individual conduct...
Part Two reviews the evolution of the commerce power from its origins at the Constitutional Convention through the major cases of this century out of which the modern interpretation has developed. Part Ill addresses the actual threat posed by federal usurpation of state authority by examining the continued value of state governments in an age when technological advances blur state lines and homogenize the population. Part IV proposes to confine the exercise of federal police power to situations in which the commerce clause forbids or compromises state regulation. Part V concludes by suggesting that the Supreme Court must resume its traditional role as protector of individual rights by defining meaningful limits on federal power.
Alan N. Greenspan,
The Constitutional Exercise of the Federal Police Power: A Functional Approach to Federalism,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss5/5