Abstract
This Essay makes two modest moves. First, it identifies the circuitous path of the United States Supreme Court’s Dormant Commerce Clause case law. I describe the different legal doctrines and tests utilized by the U.S. Supreme Court since the beginning of the Republic to navigate the tension between, on the one hand, the reserved police power of individual states to regulate in their citizens’ interests and, on the other hand, the Interstate Commerce Clause’s grant of power to the federal government to make the United States free from interstate trade barriers.
Second, I suggest three potential lessons from the Supreme Court’s experience for international free trade arrangements. First, the Supreme Court’s Dormant Commerce Clause case law shows that the line between legitimate state regulation in its citizens’ interest and illegitimate state regulation of interstate commerce, is intractable. Second, the Supreme Court’s Dormant Commerce Clause case law suggests that there is a relationship between institutional competence and the efficacy of different modes of analysis to ascertain whether a state regulation is legitimate or illegitimate. Third, the Court’s Dormant Commerce Clause case law shows the influence of different conceptions of sovereignty on the Court’s analysis.
Thank you to Professor Csongor Nagy for organizing this conference and inviting me to speak, for the conference participants’ comments and suggestions, and for valuable research assistance by Jacob Williams.
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Notes
- 1.
- 2.
Let me sound a word of caution before proceeding. My expertise is in American constitutional law, so my goal is to contribute to the conversation on international trade agreements from that perspective.
- 3.
For an overview of the Dormant Commerce Clause’s history see Redish (1995), pp. 63–98.
- 4.
See McGinnis (2012), p. 115 (arguing that federalism allows states to experiment with different approaches to human flourishing); McGinnis and Somin (2004), pp. 106–107 (identifying federalism’s capacity to cater to a diversity of preferences); see also Eskridge (2005), pp. 1293–1294 (describing the deep and increasing pluralism within the United States).
- 5.
See Texas v. White 74 U.S. 700, 725 (1868) (“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”).
- 6.
The first clear Dormant Commerce Clause Case was Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
- 7.
I describe four different tests employed by the Supreme Court. Some scholars have characterized this history in slightly different ways. E.g., Francis (2017), pp. 272–302.
- 8.
See Freedman (1994), p. 786 (“The conventional view of the period between the Declaration of Independence and the Constitution, a view that has remained unchanged except in detail for nearly one hundred years, is that the country came to the very brink of dying in infancy.”).
- 9.
Articles of Confederation (1778). In: Frohnen B (ed) The American Republic: Primary Sources 200.2002.
- 10.
See Freedman (1994), p. 786 (summarizing this conventional view).
- 11.
See Articles of Confederation IX (1778). In: Frohnen B (ed) The American Republic: Primary Sources 200.2002. (listing only the power of “regulating the trade and managing all affairs with the Indians”).
- 12.
Clinton (1990), pp. 893–894, 896–897.
- 13.
Ibid 896–897; Johnson (1997), pp. 187–188.
- 14.
- 15.
- 16.
Johnson (1997), p. 185.
- 17.
- 18.
Proceedings of the Commissioners to Remedy Defects of the Federal Government (Sept. 14, 1786). Reprinted in: Commager HS (ed) Documents of American History 132. 1958.
- 19.
Ibid 133–134.
- 20.
- 21.
U.S. Const., art. I, § 8, cl. 3.
- 22.
Clinton (1990), pp. 906–907.
- 23.
Madison (1788).
- 24.
Hamilton (1787).
- 25.
See Friedman and Deacon (2011), p. 1916 (“[N]o one at the Convention or thereafter has doubted that the states retained a wide range of powers and that they might exercise those powers in such a way that looked like a regulation of commerce.”).
- 26.
Madison (1787).
- 27.
Ibid.
- 28.
U.S. Const., art. I, § 10, cl. 1.
- 29.
Friedman and Deacon (2011), p. 1913.
- 30.
See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 81 (1824) (“[T]he States retain powers enabling them to pass the laws to which allusion has been made, not that those laws proceed from the particular power which has been delegated to Congress.”).
- 31.
U.S. Const., amend. X.
- 32.
The Healthcare Cases, 567 U.S. 519, 531 (2012) (“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.”).
- 33.
United States v. Lopez, 514 U.S. 549, 552 (1995).
- 34.
Francis (2017), pp. 273–275.
- 35.
See Barros (2004), pp. 473–498 (describing the history of the concept).
- 36.
New York v. Miln, 36 U.S. (11 Pet.) 102, 133 (1837).
- 37.
Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 442–443 (1827).
- 38.
Blackstone Sir (1769b), p. 162.
- 39.
Legarre (2007), p. 763.
- 40.
Ibid 749.
- 41.
Gibbons, 22 U.S. (9 Wheat.), at 61.
- 42.
Ibid 201.
- 43.
Ibid 203.
- 44.
Ibid.
- 45.
Ibid 204–206.
- 46.
See, e.g., Wilson v. The Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 252 (1829) (stating, in one sentence, that a state-authorized bridge across a navigable water did not violate the Dormant Commerce Clause because “[w]e do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.”).
- 47.
- 48.
Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319 (1851).
- 49.
Ibid.
- 50.
Ibid.
- 51.
Ibid 319–320.
- 52.
However, the local-national test allowed for jurisdictional overlap between federal and state authority of interstate commerce that did not require a uniform rule. States could regulate such interstate commerce so long as and until the federal government permitted it. This made state authority over “local” subjects the default and presumptive, but rebuttable by congressional legislation. See Sinnot v. Davenport, 63 U.S. (22 How.) 227, 243–244 (1859) (“Beyond these limits the States have not surrendered their power over the subject, and may exercise it independently of any control or interference of the General Government; and there has been much controversy, and probably will continue to be, both by the bench and the bar, in fixing the true boundary line between the power of Congress under the commercial grant and the power reserved to the States. But in all these discussions, or nearly all of them, it has been admitted, that if the act of Congress fell clearly within the power conferred upon that body by the Constitution, there was an end of the controversy. The law of Congress was supreme.”).
- 53.
Doctrinally, this was clearly a change from the police power test; however, it is not clear in practice how much of a change it was because the police power test permitted laws to affect interstate commerce and still be upheld.
- 54.
For potential examples, see Conway v. Taylor’s Executor, 66 U.S. (1 Black) 603 (1861) (ruling that Kentucky’s regulation of ferries on the Ohio river from the Kentucky side of the river did not violate the Dormant Commerce Clause); Henderson v. New York, 92 U.S. (2 Otto) 259, 273 (1875) (concluding that nationwide uniformity was required regarding laws governing the landing of foreign passengers on U.S. soil).
- 55.
E.g., Mo. Pac. Ry. Co. v. Kansas, 216 U.S. 262, 276 (1910); Kidd v. Pearson, 128 U.S. 1, 11 (1888); Hall v. De Cuir, 95 U.S. (5 Otto) 485, 488 (1877).
- 56.
The direct-effects test in the Dormant Commerce Clause context was the analytical sibling of the same test in the Interstate Commerce Clause context. There, the Supreme Court ruled that Congress could regulate intrastate activity that directly affected interstate commerce, and that Congress could not regulate intrastate activity that indirectly affected interstate commerce. United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895).
- 57.
Di Santo v. Pennsylvania, 273 U.S. 34, 37 (1927).
- 58.
See Hall, 95 U.S. (5 Otto) 488 (“The line which separates the powers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved.”).
- 59.
See Ackerman (1998), pp. 345–382 (describing the “amendments” to the Constitution that occurred during the New Deal).
- 60.
South Carolina St. Hwy. Dep’t v. Barnwell Bros., 303 U.S. 177 (1938); Southern Pac. Co. v. Arizona, 325 U.S. 761 (1945).
- 61.
Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333 (1977).
- 62.
Ibid 353.
- 63.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524 (1959); Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662, 670 (1981).
- 64.
Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 272 (1983).
- 65.
Maine v. Taylor, 477 U.S. 131, 146–151 (1986).
- 66.
South Carolina St. Hwy. Dep’t v. Barnwell Bros., 303 U.S. 177 (1938); compare Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) (holding that an Illinois law requiring “contour” rear mud flaps on truck and trailers, though nondiscriminatory, violated the Dormant Commerce Clause because of its disproportionate burden on interstate commerce).
- 67.
See, e.g., Southern Pac. Co. v. Arizona, 325 U.S. 761, 768–769 (1945) (“But between these extremes lies the infinite variety of cases in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.”); Kidd v. Pearson, 128 U.S. 1, 16 (1888) (“The line which separates the province of federal authority over the regulation of commerce from the powers reserved to the states, has engaged the attention of this court in a great number and variety of cases.”); Hall v. De Cuir, 95 U.S. (5 Otto) 485, 487 (1877) (“There can be no doubt but that exclusive power has been conferred upon Congress in respect to the regulation of commerce among the several States. The difficulty has never been as to the existence of this power, but as to what is to be deemed an encroachment upon it.”); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319 (1851) (“The diversities of opinion, therefore, which have existed on this subject, have arisen from the different views taken of the nature of this power.”); see also Di Santo v. Pennsylvania, 273 U.S. 34, 44 (1927) (Stone, J., dissenting) (describing the direct-effects test as “too mechanical, too uncertain in its application, and too remote from actualities, to be of value”).
- 68.
Hunt v. Washington St. Apple Advert. Comm’n, 432 U.S. 333, 349 (1977).
- 69.
Ibid 339.
- 70.
Ibid 349.
- 71.
As a reminder, its discriminatory regulation analysis first ascertains whether a state regulation that affects out-of-state commerce discriminates against out-of-state commerce on its face, in its purpose, or in its effect. If so, then the state must justify the regulation by persuading the court that the regulation directly advances an important state interest.
- 72.
Granholm v. Heald, 544 U.S. 460, 473 (2005).
- 73.
Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349, 353 (1951).
- 74.
Hunt, 432 U.S., at 352–353.
- 75.
E.g., Holmes (1921), p. 328 ((quoting McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330 (1944)); Dean Milk Co. v. Madison, 340 U.S. 349, 356 (1951).
- 76.
- 77.
Aleinikoff (1987), pp. 972–976.
- 78.
Ibid 984–986; Denning (2008), p. 454.
- 79.
S. Pac. Co. v. Arizona, 325 U.S. 761, 794 (1945) (Black, J., dissenting).
- 80.
See Lawson (2017), p. 25 (describing burdens of proof); Rogers v. Lodge, 458 U.S. 613, 623 (1982).
- 81.
- 82.
Kobick (2010), p. 532.
- 83.
For the seminal discussion of this idea see Gallie (1956), p. 167.
- 84.
- 85.
That is, prior to the Supreme Court’s practical elimination of limits on Congress’ enumerated powers, Wickard v. Filburn, 317 U.S. 111 (1942), and its elimination of legally enforceable federalism limits on Congress. United States v. Darby, 312 U.S. 100 (1941).
- 86.
See Hammer v. Dagenhart, 247 U.S. 251 (1918) (ruling that Congress could not regulate child labor under the Interstate Commerce Clause); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (ruling that Congress could not regulate child labor under its taxing power).
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Strang, L.J. (2020). The Supreme Court’s Attempts Via Its Dormant Commerce Clause Jurisprudence to Navigate State Police Power and National Free Trade: Potential Lessons for International Trade. In: Nagy, C. (eds) World Trade and Local Public Interest. Studies in European Economic Law and Regulation, vol 19. Springer, Cham. https://doi.org/10.1007/978-3-030-41920-2_8
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