Thursday, May 21, 2015

Congressional Power to Authorize Dormant Commerce Clause Violations

by Michael Dorf

My most recent Verdict column discusses the dissents of Justices Scalia and Thomas in Monday's SCOTUS decision in Comptroller of the Treasury of Maryland v. Wynne. They argue there that the Dormant Commerce Clause (DCC) "is a judicial fraud." As I explain in the column, this claim is quite overstated. One might reasonably think that the DCC is on balance a bad idea or has taken a wrong turn or something of that sort, but the notion that it is a "fraud" rests on the further supposition that textual extrapolation and structural inference are an illegitimate, indeed fraudulent, means of constitutional interpretation or construction. But Justices Scalia and Thomas do not make that further supposition in other contexts--e.g., with respect to federal commandeering of the states and state sovereign immunity--so it is hard to take seriously their invocation of it in this context.

Here I want to address another argument made by Justice Scalia in his Wynne dissent. He says: "The clearest sign that the negative Commerce Clause is a judicial fraud is the utterly illogical holding
that congressional consent enables States to enact laws that would otherwise constitute impermissible burdens upon interstate commerce. [Citation]. How could congressional consent lift a constitutional prohibition?" This is another example of Justice Scalia substituting adamant rhetoric for analysis.

To begin, Justice Scalia is right that as a matter of doctrine, Congress may authorize states to enact regulations that, absent such authorization, would violate the Dormant (or negative) Commerce Clause. But that is not "utterly illogical." Quite the contrary, it follows very logically from the core purpose of the DCC.

As I explain in the column, in modern times the DCC is understood as a judicial presumption that if Congress had the capacity to superintend the laws and regulations enacted by all 50 states and thousands of local governments, it would preempt those laws and regs that discriminate against or unduly burden interstate commerce. It is, in other words, a presumption in favor of free trade within the U.S. But it is only a presumption because, as Justice Scalia insists and no one denies, the ultimate choice whether to treat the United States as a national free trade zone is for Congress. Thus, Congress can authorize state or local regulation that would otherwise violate the DCC when acting pursuant to the affirmative Commerce Clause.

Accordingly, Justice Scalia is just wrong in declaring Congress's authorization power to be illogical. Perhaps he should have said that such an authorization power is unique and thus suspect. Ordinarily, if the Constitution requires some rule, then legislation cannot overcome that rule. Yet even the more modest claim of uniqueness is wrong.

State sovereign immunity is a useful counter-example here. The Court (in opinions in which Justices Scalia and Thomas have joined) has held that the Constitution forbids the courts from entertaining private lawsuits seeking retrospective damages from unconsenting states but that Congress, acting pursuant to its power to enforce the Fourteenth Amendment, may abrogate state sovereign immunity. Here we have what Justice Scalia regards as a constitutional rule that may be violated if the violation is authorized by congressional statute.

More broadly, as Professor Gillian Metzger argued in an insightful article in the 2007 Harvard Law Review, there are good structural reasons to read just about all of Article IV of the Constitution--which concerns state obligations to other states and their respective citizens--as permitting Congress to authorize state laws that would otherwise violate provisions of Article IV. Professor Metzger's argument is complex and subtle but in a nutshell she sees the role of Congress in superintending Article IV's presumptive rules of interstate relations as basically the same as its role with respect to the DCC's rules. Her reading, which is at least consistent with existing Article IV doctrine, further undercuts any claim that the DCC is unique and thus suspect.

None of this is to say that one cannot criticize any particular DCC rule or even the DCC doctrine as a whole. It is to say that Justice Scalia's hyperbole is unwarranted.

9 comments:

Joe said...

"substituting adamant rhetoric for analysis"

Justices do this from time to time, but Scalia in full Scalia mode tends to do it more often than some.

CJ Burger, according to "The Brethren," often wrote visceral opinions that he decided later on not to use or tone down. Imagine what Scalia's unedited opinions read like.

Stuart McPhail said...

There is also a pretty direct example of the Constitution barring state law without Congressional approval: Article I section 10: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws"

So a state is constitutionally barred from laying a duty on imports, but Congress can give the OK, and then a state is constitutionally permitted.

Have wondered whether this idea would be a new way of engaging in interstate regulation. I.e., if republicans are really about allowing state's to pursue their own policies free of federal direction, then state's should be allowed to protect those policies as well. Part of the bargain of creating a federal government is that the federal government would impose regulations to prevent one state from engaging in what is basically a trade war with another state - dumping under-priced goods in the market or under-regulating labor and environment to allow for prices to be artificially lowered, to the detriment of the state that is actually enforcing its obligations. If we want to allow state A a free hand to under-regulate and dump goods, then we should allow state B the right to protect its markets by setting up trade barriers.

James Longfellow said...

I'm not brave enough in this area of law to disagree with Professor Dorf's characterization of it but I will say that looking at the Constitution de novo I do not agree that "Congress may authorize states to enact regulations that, absent such authorization, would violate the Dormant (or negative) Commerce Clause". I think the Framers would have found that a shocking result considering that one of the main reasons America moved from a confederacy to a federal Constitution was precisely because states were engaging in tariff wars with each other. Allowing Congress rather than states to gum up the works is hardly a signal advancement in governance.

Joe said...

The third comment shows a problem with using general principles based on general concerns behind the Constitution. The second comment shows a way Congress can do certain things here that an individual state cannot by itself. The idea seems to be that the Congress, as a national body, is better able to regulate interstate commerce. Congress can regulate commerce in a way that might burden a specific state in some fashion in the promotion of national interest. This they can do unless it violates some other provision.

Shag from Brookline said...

James' " ... looking at the Constitution de novo ..." suggests to me that he is a dormant originalist of an earlier version of originalism of Framers' intent or Framers' expectations, from which originalism has evolved.

And it would not be appropriate for either Congress or the states " ... to gum up the works ... " on the commerce clause.

Steven Shiffrin said...

Mike
Prudential Insurance v. Benjamin obviously supports your analysis (Congress can authorize state taxes that discriminate against interstate commerce under the dormant commerce clause). But I am curious as to what you think of Metropolitan Life Insurance v. Ward (equal protection clause violated by discriminatory state taxation despite the McCarran Act and Benjamin). Is this not a federalist rebellion against Benjamin disguised as a rights case. Of course, this is not a disguise that Scalia would be prepared to ware.

Michael C. Dorf said...

Steve, here are two thoughts:

1) It's not just Benjamin. There are other examples of Congress authorizing what would otherwise violate the CC. E.g., bills pending in Congress to authorize state sales taxes on internet and mail order sales, essentially at the Supreme Court's invitation in Quill. So the doctrine is pretty well settled.

2) I don't like cases that use EP as a means of attacking interstate commercial discrimination. I think the doctrine would be cleaner if the DCC expressed the full extent of limits on interstate commercial discrimination and the P&I Clause of Art IV expressed the full extent of such limits in other realms.

Joseph Simmons said...

Since the last comment isn't in Chinese, I think it's not too late to respond...

Your argument on Congress being able to authorize an act otherwise presumed invalid is compelling. However, over on Verdict, I think there are holes in your response to Scalia's institutional objection. You say the objection fails for "practical reasons."

I think Scalia gives a fair statement that the DCC "requires [the Court] to balance the needs of commerce against the needs of state governments. That is a task for legislators, not judges." Against this question of judicial competence you offer that the courts must be doing a good job because Congress rarely overrules courts in such determinations.

Permitting the judiciary to take on a legislative role when Congress doesn't appear to object is akin to the president taking military action and so long as Congress doesn't object that action may be deemed a declaration of war by Congress. I understand the Court's reticence to intervene when the a potential dispute is between political branches - might we conclude that presidents do a good job of approximating congressional views of when to declare war? - but the Court eroding the apparent prerogative of Congress does not benefit from the same rationalization.

And if you're correct that Congress cannot develop law (or empower a bureacracy to develop regulations) because it "lacks the capacity to keep track of and override all of the laws that discriminate against or unduly burden interstate commerce that may be enacted by any of the fifty states and thousands of local governments" then might it perhaps also lack the capacity to monitor various court decisions?

Congress may not care that Maryland is taxing income taxed elsewhere and would agree with Ginsburg's dissent. Perhaps the fact that Congress has not passed a statute forbidding such double taxation (a law that doesn't sound so difficult to cobble together) reveals a lack of concern. It's difficult to imagine Congress having the political will to affirmatively protect "double taxation" after the Court strikes it down. I think of the King v. Burwell oral argument when Verrilli made the intemperate remark/joke that the Court should decide the case (in his favor) because Congress doesn't have the will to do its job. What Congress would or would not do should be an inappropriate consideration for a court to expand its role.

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