Professor James McGoldrick: The Commerce Clause, The Preposition, and the Rational Basis Test

Professor James M. McGoldrick's article, "The Commerce Clause, The Preposition, and the Rational Basis Test" (SSRN) will be published in the University of Massachusetts Law Review (forthcoming 2019). The article examines the expansion of Congress' commerce power by the Supreme Court's application of the "rational basis" test over the "substantial effects" test.

Abstract of "The Commerce Clause, The Preposition, and the Rational Basis Test"

In Gonzales v. Raich, the U.S. Supreme Court upheld the application of the federal Controlled Substances Act to bar the use of state-grown marijuana for in-state personal medical use. In so doing, the Court ratified the expansion of Congress’ commerce power beyond any known limits. It abandoned the “substantial effects” test that it had used since 1937 and applied the “rational basis” test. Make no mistake about it, the substantial effects test is the correct test based upon both Supreme Court precedents and the constitutional division of power in our federalist system between the federal government and the states. The rational basis test is fundamentally inconsistent with our federalist system of government. This article will first trace the historical development of substantial effects test as a limit on federal power. It will argue that the test is an important limit on federal power, balancing the need to protect our federalist system and its division of power between the central government and the states with the flexibility that Congress needs to address national issues. Second, the article will develop how the rational basis test became part of the test for federal commerce power and why it is inconsistent with constitutional limits. The article will describe the use of the rational basis test as a means of achieving federal power to protect violations of basic civil rights by private entities totally within one state. This power is denied to the federal government by a narrow view of Congress’ power under Section 5 of the 14th Amendment and by the normal application of the substantial effects test in terms of commerce power. The article will trace the movement of the rational basis test from a test in a few commerce power cases to the all-purpose test it appears to be in the Raich case.