Monday, November 28, 2005
Bruce Johnsen of George Mason University School of Law and Moin A. Yayha of The University of Alberta School of Law have published The Evolution of Sherman Act Jurisdiction: A Roadmap for Competitive Federalism in 7 U. Penn. J. Constitutional L. 403-472 (2004). The authors make the case for basing Commerce Clause jurisprudence on the competitive federalism model of antitrust law. Under the authors' approach, Congress would have to justify legislation under the Commerce Clause by identifying an economic market failure that affects more than one state which cannot be corrected by the states due to a political failure.
The article is provocative, but I am not completely convinced that the approach is completely satisfactory. Putting aside the point that Lopez was an inappropriate right turn in constitutional law, my criticism is that the concept of economic market failure and political failure are too amorphuous to be helpful in determining when Congress has the power to act. It strikes me that it is impossible to separate the question of when Congress has the power to act from whether Congress should act. The answer to both rest on one's views on the justification for regulation, which will rest on the perceived presence of an economic or political failure of sorts. Good old legal process works fine in my opinion: be deferential on whether Congress can act under the Commerce Clause and focus on when Courts should be allowed to second guess Congressional judgments based on political or economic failures in process. Lopez was a shot in the air, perhaps, but should not turned into a silver bullet designed to kill imagined legislative monsters.