Comptroller v. Wynne is a tax/dormant commerce clause case that will be argued to the Supreme Court in November. Sounds boring and unimportant? Not after reading this great post by Michael Greve: The Taxman Cometh, Twice. As he explains:
The state court got this [case] right, and there’s no conflict with binding decisions elsewhere. So why did the Supreme Court—which grants cert to state courts only in exceedingly rare cases—yank this case up?
I have a fear: in a string of cases, Justice Thomas and Justice Scalia have argued, both with characteristic force and clarity, that the entire dormant Commerce Clause is completely made up. (Justice Thomas seems prepared to jettison it altogether.) To their minds, the doctrine is an extra-textual invention—an interstate version of Lochner, and a constitutional common law rule of the sort that we’re not supposed to have. The Chief has expressed sympathy with that view. Maybe they found a fourth vote to grant cert. And maybe we’ll be treated to another disquisition on the baseless, illegitimate dormant Commerce Clause.
So far, I'm thinking, yes, I hope they have the votes. But wait, says Professor Greve, rejecting constitutional common law rules would be rejecting McCulloch v. Maryland:
M’Culloch v. Maryland (1819) held that states may not tax or otherwise encumber, in a discriminatory fashion, federal institutions such of the Bank of the United States—unless Congress explicitly permits it. The argument for the default rule is that without it, the states would make mincemeat of the federal structure. Yes: Congress could always prohibit state interferences pursuant to its copious enumerated powers. But it’ll often sit on its duff, and it can’t anticipate every devious scheme some state may dream up. That’s why you need a default rule—like M’Culloch, and like the dormant Commerce Clause.
You can argue that M’Culloch was simply wrong on this point. Some textualist-originalists do believe that; but to take on John Marshall and one of his most foundational decisions requires way more argument than I’ve seen to date. Alternatively, you can argue that the M’Culloch rule is right but the dormant Commerce Clause is wrong. But that seems unlikely. If Congress can be expected to protect anything at all, it‘s its own institutions (like the Bank). Protecting commerce among the states on non-discriminatory, non-exploitative terms? Not so much. No tax coordination rule has ever come from Congress (let alone the states themselves). The argument against the dormant Commerce Clause is an argument for unchecked state aggression.
I looked at this aspect of McCulloch a bit in The Supremacy Clause, Original Meaning and Modern Law (74 Ohio St. L.J. at 592-93) and concluded that I'm not sure it is (or at least that it should be) a constitutional rule at all. After all, in McCulloch, Congress had acted by creating the bank. Even for someone who takes a narrow view of preemption, that congressional act seems to preempt state laws that threaten fatal interference with it (as Maryland's acts against the bank did).
In contrast, in a dormant commerce clause claim, Congress has not acted. If there is any displacement of state law, it has to come from the Constitution alone. So, first, as Greve anticipates, I think the two are entirely distinct. And second, as Greve concedes, the Constitution's text doesn't support the idea of a dormant commerce clause.
It's possible that the dormant commerce clause can be grounded in history. I think it's a stretch, but some good analysis has been done in that direction. (See here by Brannon Denning, and here by Barry Friedman and Daniel Deacon). Greve, however, wants to find a dormant commerce clause protection against excessive interference with interstate commerce because, well, it would be a good idea to have one. (For an expanded argument, see his magnificent book The Upside-Down Constitution). Like some others I've noted, this argument presents itself as a "structural" argument but it's not: it's a policy argument. On the merits, he's probably right. But it's not compelling as to the Constitution's original meaning. It's quite plausible that the framers thought that a clause saying "courts can invalidate state laws they think interferes too much with interstate commerce" would have doomed ratification, and so omitted it even if some or most of them favored it. We can add it in if we like, but we're not being faithful to their meaning.