Comment: Unceasing Animosities and the Public Tranquility: Political Market Failure and the Scope of the Commerce Power

Adam B. Badawi

Abstract

Curtailing the economic chaos created by a dearth of centralized power was a prominent motivation for including the Commerce Clause among the enumerated powers of Congress. The Founders, particularly Madison and Hamilton, recognized that giving near plenary power to the federal government to regulate commerce would reduce the incentive for states to engage in the series of regulatory retaliations that was crippling the early Republic’s economy. This Comment argues that this animating purpose of the Commerce Clause was a solution to what public choice scholars would now recognize as a collective action problem. However, the collective action logic that partially motivated the Commerce Clause is largely absent both from the United States Supreme Court’s Commerce Clause jurisprudence and the more successful academic approaches to federalism. This Comment uses the tools of public choice analysis to develop a theory of political market failure, which expands on the collective action problem identified by the Framers. This political market failure analysis suggests that externalities and holdouts create a justification for the exercise of centralized power. The standard articulated by the Court in United States v. Lopez does not clearly incorporate these concerns. This Comment discusses the subsequent cases of Jones v. United States and Solid Waste Management v. Army Corps of Engineers to suggest how externalities and holdouts might play a role in post-Lopez Commerce Clause jurisprudence.