The Rehnquist Court's federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court's decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles the Court established in Lopez have been largely eviscerated by Gonzales v. Raich, the Court now has the opportunity to consider whether to turn to a strategy of clear statement rules. Such an approach would put Commerce Clause jurisprudence on a sounder footing, and could be achieved without upsetting the results in any of the major decisions in the post-Lopez era.
Thomas W. Merrill,
Rescuing Federalism after Raich: The Case for Clear Statement Rules,
Lewis & Clark L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/829