The Interstate Commerce Power
Abstract
This paper proposes two main areas of interstate law. The first, the “Marshall doctrine,” is an expansive expression of Congressional power because it encompasses areas previously under state control when it enacts affirmative legislation for the nation as a whole. The second area of interstate law covers the freedom of a state to act when Congress has not spoken, often thought to encompass the powers reserved to the states. We refer to this as the “Taney doctrine.” While the Marshall doctrine is a restriction upon the states, the Taney doctrine, by contrast, is hardly a restriction upon the national legislature. Rather, the Taney doctrine is to be understood as a limitation upon the judiciary rather than Congress because it limits the application of the so-called dormant commerce clause. This is not to say that Congress at times does not overreach its interstate powers by intruding into the powers reserved to the states. But this only happens because Congress, rather than by enacting a regulatory scheme to enforce its own national policy, improperly legislates to enforce those areas of law Congress itself has effectively left in the hands of the state legislatures. Congress, properly understood, thus defines the scope of its own powers.