Article

The Foreign Commerce Clause

This Article is the first scholarly work to comprehensively address Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s power. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and offers a doctrinally and conceptually sound approach to the Clause based on the text, structure and history of the Constitution. It also engages broader legal and policy questions triggered by the Clause involving federalism, separation of powers, foreign affairs, and individual rights. As I show, the Clause is crucial to how Congress constitutionally may project U.S. law around the world.

The Article advances two key limits on Congress’s foreign commerce power and reformats the Supreme Court’s three-category commerce framework for the Foreign Commerce Clause in light of these limits. The first is the nexus requirement, which derives from the Constitution’s grant of power only to regulate commerce “with foreign Nations,” not a general, global power to regulate commerce “among foreign Nations.” Foreign commerce that is the subject of federal regulation therefore not only must be “with” foreign nations, but also “with” the United States—that is, there must be a U.S. nexus. The second limit I refer to as the foreign sovereignty concern. It holds that Congress has no more power and, in some contexts, has less power to regulate inside foreign nations under the Foreign Commerce Clause than it has to regulate inside the several U.S. states under the Interstate Commerce Clause. For example, Congress cannot create comprehensive global regulatory schemes over international markets or prevent races to the bottom among the world’s nations the same way it can create comprehensive national regulatory schemes over domestic markets and prevent races to the bottom among the states. Because Congress lacks authority to create such global schemes in the first place, it cannot claim authority to reach local foreign conduct that threatens to undercut those schemes the same way it can reach local intrastate conduct in order to effectuate regulation “among the several States.”

Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present

This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice.

During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of the Constitution’s equal protection guarantees to adopt and enforce rules requiring equal employment in the FCC’s regulated industries. Meanwhile, administrators at the FPC relied on a quite different understanding of equal protection to reject similar rules.

Federal officials’ differing views of whether the Constitution authorized, perhaps even required, them to regulate workplace discrimination illuminates an unexamined aspect of constitutional governance that I call administrative constitutionalism: administrators’ interpretation and implementation of the Constitution. For the most part, administrative constitutionalism involves administrators’ creative extension or narrowing of court doctrine in the absence of clear judicially defined rules. However, it also includes administrators selectively ignoring clearly relevant precedent or resisting judicial interpretations by acquiescing to a reviewing court’s judgment but not to the constitutional principle on which that judgment is based.

The history of equal employment rulemaking at the FCC and the FPC supports three conclusions. First, equal protection followed a notably different path in administrative agencies than it did in the courts. Second, this example of administrative constitutionalism suggests some general features of administrators’ constitutional practice, particularly that administrators are guided, but not always bound, by court doctrine. Third, administrative constitutionalism is likely a recurring and persistent feature of the modern American state. To the extent that administrative constitutionalism differs from court constitutionalism, a complete account of the substance and scope of constitutional governance must consider the constitutional practice of administrative agencies.

Countering the Majoritarian Difficulty

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. 

This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are better insulated from public opinion. By constitutional design, the federal courts work closely with their state counterparts, overseeing state court decisions and sharing jurisdiction over questions of both state and federal law. As a result, federal courts have the potential to offset majoritarian influences on state courts by reviewing state court decisions, issuing binding and persuasive precedent on questions of federal and state law, and providing state courts with political cover for unpopular decisions. Most important, litigants can often frame their cases to get into federal court when they fear that an elected state court judge would be likely to rule against them. 

After describing the important role that federal courts can play in diluting majoritarian influences on elected state court judges, the article then examines empirical evidence suggesting that federal courts are, in fact, more involved in overseeing elected state court judges than their appointed counterparts. The article concludes by asserting that federal courts should assume a more proactive role in mitigating the majoritarian difficulty by taking a state’s judicial selection method into account when making jurisdictional choices. 

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