Rediscovering a Principled Commerce Power

Abstract

This paper contends that the soundest basis for keeping Congress within its enumerated power is one premised upon the original understanding out of which the commerce power, itself, arose-namely, the Virginia Resolution. Under that foundational precept, Congress may regulate commerce either to vindicate a wellidentified national interest or to rectify state regulatory incapacity. With respect to the delegation of legislative authority, the Court need only abide by the standard of deference in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc. Of course, abiding by wrongheaded or costly, but statutorily authorized, regulatory decisions is easier said than done-even by restrained members of the judiciary.