The Commerce Clause and Criminal Law

Abstract

The ongoing expansion of federal criminal law undermines the historical decentralization of criminal law in this country by usurping state authority in that area. While some protection of federalism is necessitated by the Supreme Court's commerce power jurisprudence, the economic/non-economic distinction enunciated in United States v. Lopez is an unworkable return to past efforts to find internal limits to the Commerce Clause. Instead, a return to the test of National League of Cities v. Usery---yiewing the Tenth Amendment as an external limit on the scope of Congress's Commerce Clause authority— is the best means of protecting the authority of the states to make and enforce criminal law.