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.