Originalist-oriented law professor Saikrishna Prakash (Virginia) has filed this amicus brief in support of petitioners in Suncor Energy (USA), Inc. v. Boulder County (to be argued at the Supreme Court on Monday, October 5). From the Introduction and Summary of Argument:
Boulder would have this Court endorse a theory that would upend a world of sovereign, independent nation-states and replace it with a disordered scheme in which no country has exclusive sovereignty, let alone any measure of true independence. Some nations might compel firms to extract fuels, while others might attach draconian liability for the same mining or drilling. Some nations might believe that the burning of fossil fuels helps raise their people’s standard of living and incentivize their consumption through subsidized prices; others might scowl at this encouragement and sue the person who uses fossil fuels to run her factory or to heat her home. This regulatory cacophony is not a bug in Boulder’s theory; it seems to be a feature.
There is a sound and ancient answer to Boulder’s misreading of Colorado’s legislative power. Long ago, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 430–32 (1819), Chief Justice John Marshall rightly said the parts cannot control the whole. He meant that a single State could not tax an instrumentality of the whole nation, even when that entity operated within that State. But in an extravagance that Maryland perhaps never imagined, Boulder claims on behalf of Colorado not only the legislative power to regulate within every State in the Union, but also across the whole world. In doing so, Boulder claims such legislative power for every sovereign, domestic and foreign, for if Boulder is right all of them may extend their laws and policies across the globe.
The Constitution bars Boulder’s vagrant claims of legislative and regulatory authority. Like other sovereigns, Colorado’s sovereignty is territorial, essentially confined to Colorado. In the eighteenth century, nation-states had territorial jurisdiction and lacked legislative power to regulate foreigners in foreign lands. By ratifying the Constitution and joining the Union, the thirteen original States and their 37 later admittees effectively yielded up the right to even attempt to regulate such conduct.
If anyone in the United States can unilaterally regulate the conduct of foreigners in foreign states, it would be Congress, through the delicate and careful exercise of its legislative powers. This Court should be deeply reluctant to conclude that “the peace of the WHOLE [was] left at the disposal of a PART.” The Federalist No. 80, at 476 (Alexander Hamilton) (Clinton Rossiter ed., 1961). If, however, Boulder is right, every State (and many localities) has legislative power to enflame each other and every nation under heaven. And every other nation has the lawful power to regulate production and emission in the United States. A part of this Union cannot control what occurs in the other parts.
A part of this Union cannot graspingly reach across national borders to regulate what occurs in other nations and thereby antagonize those sovereigns. And a part of this Union should not insist upon extranational regulatory power in a manner that invites reciprocal regulation from more than a hundred foreign sovereigns. Boulder’s theory of Colorado’s regulatory reach well exceeds the latter’s constitutional grasp. This Court should reject Boulder’s novel reading of Colorado’s legislative jurisdiction, one grounded on a misunderstanding of territorial sovereignty, our federal system, and the international order.
Via Michael Buschbacher (Boyden Gray PLLC), guest blogging at Volokh Conspiracy, who also has thoughts in support of petitioners.
RELATED: The article noted here, by Ryan J. Walsh & Michael A. Fragoso, Is the SCOTUS Climate Change Case a “Conservative Intuition in Search of a Constitutional Clause”?
Posted at 6:14 AM