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Public Law & Legal Theory


There is a crucial, although implicit, empirical assumption in the debate about federal judicial review under the affirmative Commerce Clause. The assumption, indulged by many different camps in the debate, is that Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states. I want to suggest that, on equally plausible empirical assumptions, Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization may have picked a course of action with perverse effects; they may have picked the wrong team. And those who favor Commerce Clause review because they believe the Constitution commands it should take into account that increased centralization may be a cost of their position.



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