The Commerce Clause of the United States Constitution grants Congress the power to regulate commerce among the several states. Beginning in the late 1930s, according to libertarian legal scholars, the Supreme Court expanded this power to allow Congress essentially a blank check to do whatever it feels like Timothy Sandefur on The Libertarian Constitution (2021). This expansion became a central fault line in American constitutional law, dividing conservatives who favored judicial deference to the elected branches from libertarians who argued for active judicial protection of economic liberty.
The Conservative-Libertarian Schism
Damon Root described the conservative legal movement as having grown up in response to liberal court victories of the 1950s and 1960s under the Warren and Burger Courts, modeled on the civil rights movement’s success through legal means. This movement became extremely influential, controlling the Supreme Court and wielding significant power within the Republican Party. The Federalist Society served as a key organization in this effort Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Within this broader movement, however, a libertarian insurgency emerged that disagreed with conservatives on fundamental questions about the role of courts. The real fault line concerned whether courts should be deferential to the elected branches of government. Conservatives of the past thirty years focused on privacy cases involving sexual privacy, birth control, and abortion, arguing that the right to privacy is unenumerated and therefore not properly protected by courts. Libertarians disagreed, contending that the Constitution does protect such rights and that government overreach into private decisions violates fundamental principles.
This schism extended to economic regulation cases. According to Root, figures like Justice Antonin Scalia, Robert Bork, and John Roberts applied a deferential philosophy that treated economic rights as second-class, accepting what Root called the New Deal constitutional settlement. Libertarians rejected this approach, arguing that the Constitution requires courts to actively protect economic liberty. Scalia debated libertarian law professors on this question, maintaining that the Constitution does not require such protection and that it would be a terrible idea. His concern, Root suggested, was that if the libertarian view became prevalent, it would encourage liberal judges to be more aggressive themselves.
The Healthcare Case and Randy Barnett
The debate over Commerce Clause interpretation came to national prominence in the 2012 healthcare case challenging the Affordable Care Act. One of the questions was whether Congress had authority under the Commerce Clause to impose the individual mandate requiring Americans to buy health insurance. Randy Barnett, a law professor at Georgetown, served as an architect of that legal challenge and had argued for a narrow reading of the Commerce Clause for a long time, believing the federal government had grown too powerful under broad interpretation Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
In 2005, Barnett argued a medical marijuana case at the Supreme Court and lost. The Court held that the Commerce Clause was broad enough to uphold federal enforcement even though California had legalized medical marijuana. Justices Scalia and Kennedy voted against Barnett, favoring broad Commerce Clause power. Yet just seven years later, Barnett’s arguments became the default conservative position, with the entire conservative movement lining up against Obamacare. Scalia changed his views, while Roberts held to the older conservative view.
Root characterized the libertarian effort as a war of ideas waged through law review articles, speeches, debates, and court cases over decades. Michael Greve, writing in the Wall Street Journal, conceded that libertarians had gained considerable ground, with their view becoming much more dominant on the right than it was thirty years prior.
Undoing Supreme Court Damage
Timothy Sandefur framed his work on constitutional revision as undoing Supreme Court damage rather than creating new concepts. He and others compiled a long list of Supreme Court decisions they believed got things wrong and attempted to rescue the Constitution. Their version of the Commerce Clause allows Congress to regulate commerce among the several states as the Constitution currently says, but adds a proviso that this shall not authorize regulation of a non-commercial activity or any activity confined within a single state regardless of its effect outside the state. They did allow Congress power to regulate things like pollution that cross state lines Timothy Sandefur on The Libertarian Constitution (2021).
Bob Zadek objected to the phrase that the Commerce Clause was expanded, arguing that this language suggested something happened physically or metaphysically. He insisted that the Supreme Court over time assigned a meaning to a clause that never had that meaning, and that blame should rest with the Court. Sandefur agreed, placing blame squarely on Franklin Delano Roosevelt and the Supreme Court that toadied up to him. He identified National Labor Relations Board v. Jones & Laughlin Steel Corporation as the primary decision, which upheld the National Labor Relations Act on the theory that without the Act there would be a problem with the labor market that would disrupt the nation’s economy. This reasoning, Sandefur said, meant Congress had power to regulate every employment contract in the nation. He called it ludicrously expansive and said it became an open door and blank check for Congress to regulate practically anything with any economic effect on the nation.
The Dormant Commerce Clause
The Dormant Commerce Clause doctrine addresses situations where Congress has not legislated but a state statute imposes an impediment to the free movement of goods and services across state lines. According to Richard Epstein, the doctrine was basically dormant until 1824, when a case called Gibbons and Ogden outlined the doctrine. The doctrine holds that if Congress does not legislate but a state statute impedes free movement of goods and services across state lines, the very fact that the Commerce Clause takes over the area means those statutes can be struck down California Passes the Worst Piece of Legislation Since AB 5 (2023).
Epstein noted that the doctrine is in somewhat of a disarray today, with many conservative judges thinking it is not really textual in the strong sense. Originalists like Thomas and Scalia were reluctant to extend it. The doctrine became relevant to California’s Proposition 12, which regulates the living conditions of pigs raised for pork sold in the state. Epstein explained that California says you cannot sell within the state pigs that are slaughtered and prepared elsewhere outside the state if they do not meet California standards. He called this the so-called extraterritorial effect and said the Dormant Commerce Clause arguments were stronger there than in other contexts.
Epstein raised a hypothetical about whether California could refuse to allow anybody to sell goods and services if they were made in a right-to-work state or by a nonunion firm. He said the Dormant Commerce Clause says you absolutely cannot do anything like that. One of the issues left over in the pork case was exactly that one. The unions and the state had a brief trying to explain why everything was hunky dory, but when it came to the hypothetical about the Right-to-Work Act, they punted. Epstein predicted they would lose but called it a very tricky judgment.
The case also raised questions about whether California courts and legislature could use their huge position in markets to dominate how things are done in other states. Epstein noted there was a long and learned debate over the extent to which companies could adapt assembly lines to supply both California and non-California markets without high price increases. The case might be remanded to determine whether the price increase posited by the industry, something close to 10%, was a true number. Epstein also predicted imitation, with other liberal states borrowing California’s approach once constitutional issues were ironed out.
The Commerce Clause as a Hook
In a discussion of the Dobbs draft decision, Evan Bernick noted that it was theoretically possible Congress could pass legislation designed to protect the right to an abortion. This would not be a constitutional right; Congress would have to rely on its power probably under the Commerce Clause on the theory that abortion is economic activity, to protect that economic activity within states hostile to it. But as a federal constitutional matter, one could not go into federal court and claim a right to terminate a pregnancy Evan Bernick on the Dobbs Draft (2022).
Bob Zadek observed that federal law has enacted legislation criminalizing many activities that were heretofore the province of the states, including activities dealing with alcohol, drugs, and guns. The federal government does so not because it has the power per se to enact criminal law legislation, but because it has to have a hook. Given Commerce Clause jurisprudence, the issue of whether Congress can do it is answered yes; they will find a Commerce Clause hook. The question is whether they will do that.
Across episodes
The Commerce Clause appears across four episodes spanning 2014 to 2023. The earlier treatment by Damon Root focused on the conservative-libertarian schism and the healthcare case, while the later treatment by Timothy Sandefur focused on constitutional revision efforts. Richard Epstein’s discussions addressed the Dormant Commerce Clause and Proposition 12, while Evan Bernick considered the clause as a potential hook for federal abortion legislation. The excerpts show a consistent libertarian critique of broad Commerce Clause interpretation, with the specific applications varying by episode.
What the sources do not cover
The excerpts do not provide the full text of the Commerce Clause or its precise constitutional location. They do not explain the original understanding of the clause at the founding beyond brief references. The sources do not cover the complete history of Commerce Clause jurisprudence or all major cases interpreting it. They also do not provide the final outcome of the Proposition 12 case or the Dobbs decision.