Why the Dormant Commerce Clause is Bogus

Why is the Supreme Court deciding state laws that may burden commerce? The Dormant or Negative Commerce Clause covers cases regarding state laws where Congress has failed to Act. The obvious answer to this question is that the Supreme Court does not want States to pass laws that are discriminatory or provide some type of protectionism. If the Court is successful in removing protectionism among the States then the Court may help eliminate barriers in Commerce that would provide a national market that is equal for all States. However, nothing works like it is intended. There are many reasons why the Dormant Commerce Clause has no place in our judicial system.

First, the Court is not suited to make decisions over economic policy. In modern times, Congress is much better equipped to make decisions over state laws (more infrastructure including the massive regulatory agencies contained within the executive branch).

Secondly, even though the Court has decided many Dormant Commerce Clause cases, this does not mean that their judgment is the final word on the subject. Congress has the final word on the Commerce Clause and they can therefore pass a law that overrules what the Supreme Court decided. For instance, in the United States v. South-Eastern Writers Association (1944) case, the Court overruled Paul v. Virginia (1869) and held that insurance could be regulated by the commerce clause. A year later, in 1945, Congress responded by passing the McCarran-Ferguson Act which overruled the Supreme Court decision. In Marbury v. Madison (1803), Chief Justice Marshall said it was the duty of the Court to say what the law is. However, the Court does not necessarily know what the law should be in cases involving the dormant commerce clause. Hence, the Court is overstepping its bounds and legislating from the bench.

Third, it removes federalism from our system of government and provides more power to the federal government. States should be allowed to experiment with legislation and Congress should adopt those state laws which may work on a national level. In Cooley v. Board of Wardens in 1851 Justice Curtis says “It should be left to the legislation of the states; that is local and not national”.

Fourth, the Court consistently sides with federal laws expanding the powers of the commerce clause. The Court can apply any law that they deem ‘may’ have a ‘substantial impact’ on commerce. The laws do not even have to be necessary and proper – laws may just be convenient. The Court has consistently granted constitutionality to federal laws that may protect the safety of American citizens under the ‘general welfare’ clause. For instance, federal laws such as food and drug safety laws have been enforced using the commerce clause. But the Court acts in the complete opposite manner over state laws interpreted by the dormant commerce clause. For instance, in Philadelphia v. New Jersey the Court held a New Jersey law that prohibited solid waste from outside states to be deposited in New Jersey landfills was unconstitutional because it discriminated against other states. In other words, New Jersey was no longer allowed to protect its citizens from an unnecessary exposure to toxins because the law discriminated. Why isn’t garbage a local problem? Why is solid waste even considered commerce? In Kassel v. Consolidated Freightways the Court found an Iowa law to limit the length of trucks on its highways to 55 feet unconstitutional even if it meant having safer roads. The Court made its ruling despite many other states having similar laws. The Court has consistently held that state safety concerns are not reason enough to even slightly burden commerce. However, federal laws can restrict commerce for safety reasons. This judicial review process is contradictory at best.

In United Haulers Association v. Oneida-Herkmer Solid Waste Justices Scalia and Thomas had interesting concurring arguments. Scalia says that there is only one way to interpret the commerce clause – it is “an authorization for Congress to regulated commerce”, the Court has no business regulating commerce. Justice Thomas says the Negative Commerce Clause has “proved unworkable in practice”. Thomas continues to say “To the extent that Congress does not exercise its authority to make that choice, the Constitution does not limit States’ power to regulate commerce. In the face of congressional silence, the States are free to set the balance between protectionism and the free market. Instead of accepting this constitutional reality, the Court’s negative Commerce Clause jurisprudence gives nine Justices of this Court the power to decide the appropriate balance.” Thomas explains that reasons that may exist today to find legislation constitutional are “reasons that later majorities of this Court may find to be entirely illegitimate.” Thomas uses the example of the 1905 Lochner decision. Just three years after Lochner was decided the Court upheld Muller v. Oregon which was in stark contrast to the Lochner holding that the “right of contract” prevailed over wage laws.

Fifth, the Court applies too many odd rules to Dormant Commerce Clause Cases such as the “market participant” rule. In other words, a State government can make discriminatory laws if the government is an active participant in the market instead of being seen as purely a regulator of the market (Hughes v. Alexandria Scrap, Reeves v. Stake, and White v. Massachusetts). Rules like these seem odd especially considering they do not apply to the Federal government.