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.
- What do the authors identify as the historical reason for the creation of the Commerce Clause (CC)?
- What do the authors identify as the “turning point” in CC jurisprudence? What was the nature of that turning point?
- Does the Court construe the CC broadly or narrowly today?
- How do the authors want the CC construed?
- Your opinion: Should the CC be broadly or narrowly construed? Why?
- What are some of the current problems to which the authors want the CC applied?
Wickard v. Filburn, 317 U.S. 111 (1942).
- Who wins this case, the government or the challenger?
- What is the reasoning of the Court regarding this case?
- How would you characterize this reasoning?
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).
- On the current Supreme Court, Justice Kennedy is often thought of as the “swing vote.” Who was the swing vote in this case?
- How does the Court construe the individual mandate? (Hint: There are TWO sections dealing with this provision. What does the Court say about both?)
- What is the status of the expansion of Medicaid after this case? What’s the Court’s reasoning?
- 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)
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- What is the “anticommandeering” rule?
- What is “preemption”?
- What of the Article VI Supremacy Clause?
- What are the justifications cited by the Court for the anticommandeering doctrine?
- What is the practical consequence of this decision?