Current doctrine limits Congress's commerce power to regulation of "economic" activities. Because many environmental laws regulate noneconomic objects, some have argued that the Constitution does not grant Congress power to enact these environmental laws.
This Note rejects analysis of whether an object of regulation is "economic," and substitutes a test inspired by the principles underlying the Commerce Clause to demarcate the proper spheres of federal and state regulatory authority. Under the "national impact test," courts should evaluate whether federal legislation regulates activities with a nationwide impact or which the states cannot regulate on their own. If Congress does not make this showing, then the states should retain the power to regulate.
Evaluating environmental legislation under this national impact test provides a more coherent analytical framework-one that reflects the Framers' federalism principles, conforms to the Constitution's structure, and restores political accountability. This Note demonstrates that this analytical approach better carries out the purposes of the Commerce Clause and provides a more coherent rationale for according Congress constitutional authority to enact different modes of environmental regulation.
David M. Metres,
The National Impact Test: Applying Principled Commerce Clause Analysis to Federal Environmental Regulation,
61 Hastings L.J. 1035
Available at: https://repository.uchastings.edu/hastings_law_journal/vol61/iss4/7