ABSTRACT
A paramount development in American constitutional history has been the expansion of the power of the federal government. Whereas the Court's refusal to infer preemption of state laws maximized the exercise of state power, federal concerns were protected, because Congress could override Court rulings by clarifying its preemptive intent. The case for exclusivity is presented in the dormant-power theory, which suggests that by granting Congress the power to regulate commerce among the several states, the Constitution implicitly prohibited state regulation of that commerce. The scope of state power over commerce, accordingly, could be defined by subtraction: the states can regulate only those commercial transactions that Congress cannot regulate. By directing attention to the particular factual situation in each case rather than to the nature of national and state power, the Cooley standard marked a major advance in Commerce Clause analysis.
