Abstract:
As reflected in the introductory quotes, there are two faces to the Commerce Clause, and Justice Thomas hates them both. First, the Commerce Clause is one of the most important grants of power to Congress in the Constitution, which Thomas criticizes as “Congress appropriating state police powers.” Second, the very grant of power to Congress imposes limits on the ability of state and local governments to regulate interstate commerce. This is called the negative or Dormant Commerce Clause, which Justice Thomas says “has no basis in the text of the Constitution, makes little sense” and is “virtually unworkable.” To put it bluntly, Justice Thomas really, really hates the Commerce Clause.
