Vanderbilt Law Review

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The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates federalism and separation of powers, concerns rooted in the earliest part of our constitutional history, the arrival of a new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. An analysis of Commerce Clause doctrine reveals that while the Rehnquist Court successfully imposed substantive limits on the scope of this important source of congressional power for the first time in sixty years, that Court was far less successful in developing a coherent normative theory that reconciled its new doctrinal limitations with the traditional broad scope of the post-New Deal Commerce Clause cases. This Article's new game theoretical approach achieves these objectives by offering a compelling normative account of Commerce Clause doctrine and a framework for applying the new methodology to actual cases.

In the confirmation hearings for both John Roberts and Samuel Alito, Chairman of the Senate Judiciary Committee Arlen Specter expressed concern that the Supreme Court's new Commerce Clause doctrine, first articulated in United States v. Lopez and later applied in United States v. Morrison, demonstrated disrespect for Congress and for its factfinding processes. In Lopez, Chief Justice Rehnquist, writing for a majority, struck down the Gun-Free School Zones Act, which had made it a federal crime to use or possess a gun within 1000 feet of a public school. The Lopez Court changed the longstanding test governing the scope of Congress's Commerce Clause powers, attributable to the infamous case Wickard v. Filburn. While prior cases had used "economic" to qualify the effects that the underlying regulated activity had on commerce, the new Commerce Clause doctrine used "economic" to qualify the activity itself.'

The Commerce Clause has long been a source of contention between liberal and conservative jurists in large part because the commerce power is broader in reach than virtually any other delegated congressional power. The Tenth Amendment notwithstanding, congressional regulation under the Commerce Clause has highlighted the tension between a model of limited and delegated federal powers on the one hand and presumed or plenary police state powers on the other. Using the newly devised non- economic activities test, Rehnquist was able to cabin longstanding and expansive Commerce Clause cases into a neatly defined, and seemingly limited, category, thus restoring at least the appearance of limited congressional regulatory powers.