At Dorf on Law, Michael Dorf: Congressional Power to Authorize Dormant Commerce Clause Violations. From the introduction:
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 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.
I agree — of the arguments one could make against the dormant commerce clause, Justice Scalia's point doesn't seem the most compelling. From a while back, here are my textualist arguments against the dormant commerce clause; note that Justice Scalia's argument on congressional authorization isn't one of them.
To take a somewhat analogous situation, most people think that the declare war clause means that Congress exclusively has the power to declare war, and thus that the President does not have that power. But Congress routinely authorizes the President to initiate hostilities, which (as I argue here) is in effect authorizing the President to declare war. Most people do not find a constitutional problem with that (again subject to non-delegation issues), and I agree. Similarly, even if you think the Constitution gives Congress exclusive decisionmaking power over (some types of) regulations of interstate commerce, it would still be quite plausible to argue that Congress, pursuant to that power, could delegate some of it back to the states.
The problem with the dormant commerce clause is, rather, that there simply is no textual basis for it. It is a "judicial fraud," in Scalia's words, because its very name creates a false impression of textual foundations. It is a false claim to a negative implication. The declare war clause, as noted, both grants a power to Congress and — by negative implication — denies that power to the President. This approach to interpretation was well understood in the founding era, and it is basically undeniable that the framers understood the declare war clause to have this effect. So one might think, then, that the grant of power to Congress to regulate interstate commerce carries a similar negative implication that states cannot regulate interstate commerce (unless Congress allows them to) — and, hence, the "dormant" (or "negative") commerce clause.
The problem is that the dormant commerce clause doctrine has absolutely nothing to do with Congress' power to regulate interstate commerce. No one thinks that the scope of Congress' power to regulate interstate commerce has any relationship whatsoever with the scope of the dormant commerce clause doctrine (as it is currently understood or as it could be understood). The breadth of things that Congress can regulate under its interstate commerce power and that the states can also regulate without running afoul of the dormant commerce clause doctrine is vast.
As a result, the collection of rules we call the "dormant commerce clause" does not arise from a negative implication of the commerce clause. That would be more obvious if we called it something else (as we should). But calling it something else would make clear its lack of textual foundation.
Posted at 6:14 AM