Volume 96

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.”

Prospects for Judicial Review of Arbitration Awards Under State Law

Binding arbitration offers parties a means to resolve their dispute without the cost and delay of litigation. To ensure that arbitration is not merely a prelude to litigation, 49 jurisdictions have adopted arbitration statutes with an identical list of grounds on which a court can review and vacate an arbitral award. Congress has enacted the Federal Arbitration Act, 9 states have adopted arbitration statutes based on that act, and 38 states and the District of Columbia have adopted the Uniform Arbitration Act. Under the Federal Arbitration Act, as recently interpreted by the Supreme Court in Hall Street Associates v. Mattel (2008), and under 38 state courts’ interpretations of their arbitration statutes, a court cannot vacate an arbitration award for an arbitrator’s mistake or disregard of fact or law. Critics argue that this lack of substantive review gives too much discretion to arbitrators, and that fear of “maverick” arbitrators drives parties away from arbitration.

Virginia is indicative of this national trend away from judicial review of arbitration. Virginia adopted the Uniform Arbitration Act in 1986, and its highest court has consistently held that the grounds for vacatur under that act are exclusive. This paper examines the possible avenues that exist under current state law, using Virginia as a case study. Moreover, this paper suggests statutory amendments, some of which have been adopted in a few other jurisdictions, that might serve to better balance the competing concerns of arbitral finality and judicial oversight. These proposals under Virginia law serve as a model that can be applied in the other jurisdictions that grapple with those same concerns under similar arbitration statutes.

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.

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