“Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce,”

Robert H. Bork and Daniel E. Troy, “Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce,” Harv. J.L. & Pub. Pol’y, Vol. 25, No. 3 (Summer, 2002), pp. 849-893.

  1. What do the authors identify as the historical reason for the creation of the Commerce Clause (CC)?
  2. What do the authors identify as the “turning point” in CC jurisprudence? What was the nature of that turning point?
  3. Does the Court construe the CC broadly or narrowly today?
  4. How do the authors want the CC construed?
  5. Your opinion: Should the CC be broadly or narrowly construed? Why?
  6. What are some of the current problems to which the authors want the CC applied?

Wickard v. Filburn, 317 U.S. 111 (1942).

  1. Who wins this case, the government or the challenger?
  2. What is the reasoning of the Court regarding this case?
  3. How would you characterize this reasoning?

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).

  1. On the current Supreme Court, Justice Kennedy is often thought of as the “swing vote.”  Who was the swing vote in this case?
  2. How does the Court construe the individual mandate? (Hint: There are TWO sections dealing with this provision.  What does the Court say about both?)
  3. What is the status of the expansion of Medicaid after this case?  What’s the Court’s reasoning?
  4. YOUR OPINION: Where does Wickard stand after this case?  It is likely still good law, but in what sense?

Murphy v. NCAA, 584 U.S. — (2018) (in “Files” in Canvas; and this link: https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf)

  1. What is the “anticommandeering” rule?
  2. What is “preemption”?
  3. What of the Article VI Supremacy Clause?
  4. What are the justifications cited by the Court for the anticommandeering doctrine?
  5. What is the practical consequence of this decision?
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