Comment by Alan R. Arkin
The balance between federal and state power is often difficult to define with any degree of precision. This is partly because Congress's reliance on the Commerce Clause has allowed the federal government to legislate in areas that were traditionally within the domain of the individual States and in areas not generally associated with interstate commerce. The case of United States v. Darby was the catalyst for a myriad of legislation that had little to do with interstate commerce. However, the Supreme Court in United States v. Lopez held that the Gun-Free School Zones Act was an impermissible use of the Commerce Clause, signaling that perhaps federal power has reached its limit. This Comment suggests that, fundamentally, the problem with the scope of the Commerce Clause lies in the fact that the United States Supreme Court has not consistently defined a limiting principle beyond which federal power is improper. The Court has stated that the Tenth Amendment is not a judicially enforceable limit, and that the Court will not engage in a determination of what is a traditional state function. However, it is this forbidden inquiry that the Court has relied on in subsequent evaluations of federal legislation. This Comment argues that these inconsistencies in the Court's modern federalism jurisprudence make it difficult, if not impossible, to properly define what is within the Commerce powers of the federal legislature.
About the Author
Alan R. Arkin. B.A. 1993, Washington University; J.D. Candidate 1996, Tulane Law School.
Citation
70 Tul. L. Rev. 1569 (1996)