In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that the Supreme Court is unlikely to expand Lopez by building upon its principles or striking down other congressional statutes. A host of signals from the Supreme Court's 1994 Term suggests that the Court does not intend to apply Lopez broadly.
Deborah J. Merritt,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol94/iss3/5