The Dormant Commerce Clause
Mike Rappaport

Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause.  Here are my views:

1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak.  That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.

2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.

3.  I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.

4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).”  But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”

We may not have seen Congress’s actions in this area because the Court has already acted.  We simply do not know.  After all, Congress does not take actions to overturn the Dormant Commerce Clause (except in very limited areas, such as insurance).  And it would only take one statute for Congress to duplicate the Dormant Commerce Clause in the form of a statute..

While individual states may benefit from discriminatory state action, states as a whole will be harmed – and that is the question that Congress addresses when it considers a Dormant Commerce Clause statute.  Moreover, it is not state officials who make the decision, but national officials in Congress.  I think there is a substantial chance that Congress would pass such a statute if the Dormant Commerce Clause were eliminated.

(Cross posted at the Liberty Law Blog)

Chief Judge Robert Katzmann on Statutory Interpretation
Michael Ramsey

At SCOTUSblog, Ronald Collins interviews Chief Judge Robert Katzmann on his new book Judging Statutes (Oxford Univ. Press 2014) [discussed here].


Will Baude on Free Speech,, Voting Rights and Abortion Rights
Michael Ramsey

At Volokh Conspiracy, Will Baude:  Free speech vs. voting rights and abortion rights (commenting on this article by Dahlia Lithwick).

Lithwick’s basic point is that the right to vote and to obtain an abortion ought to get, but do not get, the same strong protection from the Court as free speech does. ...

But I can’t help but noticing one interesting and important difference between the right to free speech, and the rights to vote or to obtain an abortion. The right to free speech is enumerated in the text of the Constitution. The rights to vote and to obtain an abortion are not — at least not as explicitly.

Donald Drakeman: A Commentary on Richard Ekins' 'The Nature of Legislative Intent'
Michael Ramsey

Donald Drakeman (University of Cambridge; Notre Dame Law School) has posted Charting a New Course in Statutory Interpretation: A Commentary on Richard Ekins' 'The Nature of Legislative Intent' (Cornell Journal of Law and Public Policy, Vol. 24, No. 1, 2014) on SSRN. Here is the abstract: 

Jettisoned by many modern scholars, legislative intent is a critical component of statutory interpretation, according to a recent book by Richard Ekins [Ed.:  The Nature of Legislative Intent (Oxford Univ. Press 2012)]. In what has been called the most philosophically sophisticated work on the subject of legislative intention, Ekins describes the well-formed legislature as a group agent that enacts laws based on coherent and reasoned plans that represent the legislature's intent. In interpreting the laws, the duty of courts is to infer that intent, which requires judges carefully to consider the chain of reasoning that led to a particular legislative choice about means and ends. Professor Ekins thus charts a new course in the debates over statutory interpretation between textualism's focus on semantic meaning and a much more open-ended purposivism. This Article sets out Ekins' discussion of the central case of the well-formed legislature, and his compelling argument for courts to interpret statutes by inferring the reasoned plan adopted by the legislature and made known in the text. It then analyzes the opportunities and challenges arising in applying Ekins' analysis to litigated cases and flesh-and-blood legislative bodies by focusing on how, and where, courts should look for evidence of that intent. It concludes that a thoughtful use of legislative history, though discarded by a great deal of contemporary scholarship, including Ekins' work, can be an essential element of the search for a statute's meaning.

We're honored that Professor Ekins (Oxford University) will be presenting a paper on interpretation and intent at the USD Originalism Works-in-Progress conference in February (A full list of the papers will be posted shortly). 


Andrew Hyman on Dormant Powers
Michael Ramsey

Andrew Hyman comments on this post

Several scholars have argued for a dormant immigration power analogous to a dormant commerce clause.  For citations, see note 68 of this 2013 essay by Professor Kerry Abrams.

Seems to me that the theories about dormant clauses make little sense.  The power to regulate commerce, for example, is plainly not indivisible, given that everyone agrees Congress is free to divide it.

Unsurprisingly, I'm no fan of the dormant immigration power (indeed, it seems much weaker that the dormant commerce clause, as Congress has no express comprehensive immigration power and the states regulated immigration without much objection for much of the nineteenth century).

Also, the second point is a good one.  The fact that a regime of concurrent state and federal regulation of interstate commerce can exist is strong evidence that the grant of the power to Congress is not, in itself, a denial of the power to the states.  As I put it in The Constitution's Text in Foreign Affairs (p. 275): 

Hamilton [in Federalist 32] ... argued that under the Constitution, "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act, exclusively delegated to the United States."  Exclusive delegation would arise, he continued, not only from express federal exclusivity or express preclusion of the states, but also where the Constitution "granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant."

But if concurrent regulation of interstate commerce is possible (as everyone agrees it is), then the authority granted to Congress to regulate interstate commerce is not "absolutely and totally contradictory and repugnant" to the states retaining it as well.  

Suzanna Sherry: The Classical Constitution and the Historical Constitution
Michael Ramsey

Suzanna Sherry (Vanderbilt University - Law School) has posted The Classical Constitution and the Historical Constitution: Separated at Birth (8 NYU Journal of Law & Liberty 983 (2014)) on SSRN. Here is the abstract: 

As part of symposium on Richard Epstein’s new book, The Classical Liberal Constitution, this article points out that his purportedly historical approach is actually present-oriented, which undermines two particular parts of his analysis. First, his discussion of judicial review mischaracterizes both judicial review itself and its history. Second, his discussion of abortion restrictions as valid exercises of the police power ignores the historical evidence. That evidence demonstrates that abortion restrictions were enacted for exactly the sort of wealth-transferring, monopoly-creating reasons that he finds unconstitutional in other contexts.


Greg Weiner on Federalism and the Halbig Litigation
Michael Ramsey

At Liberty Law Blog, Greg Weiner, Halbig and the Nonchalance of Six Small Words.  The six words are, of course, “an exchange established by the State.”  Professor Weiner continues:

The gamble was that states, enticed by subsidies for their citizens or intimidated by the threat of losing Medicaid funds, would establish healthcare exchanges. The Obama administration is surely right that the whole idea of the Affordable Care Act (ACA) was that such subsidies be provided, and that the consequences that have ensued from those six small words were probably unintended.

On the other hand, the authors of those words—and words, after all, are the stuff of laws—placed their bet at a casino called federalism, a device that is not incidental to the constitutional design. That is what is at stake in this case, and that is why even those who believe the courts should give majorities a wide berth may be compelled to support judicial intercession to empower majorities—as expressed through the states—in Halbig.

Mark Graber: The Declaration of Independence as Canon Fodder
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted The Declaration of Independence as Canon Fodder (Tulsa Law Review, Vol. 49, p. 469, 2013) on SSRN.  Here is the abstract:

Reviewing Alexander Tsesis, For Liberty and Equality: The Life and Times of the Declaration of Independence (2012); Justin Buckley Dyer, Natural Law and the Antislavery Constitutional Tradition (2012); Nicholas Buccola, The Political Thought of Frederick Douglass (2012); and Brian R. Dirck, Lincoln and the Constitution (2012).


Ilya Somin: Libertarianism and Federalism
Michael Ramsey

Ilya Somin (George Mason University School of Law) has posted Libertarianism and Federalism (Cato Institute Policy Analysis No. 751) on SSRN. Here is the abstract: 

Federalism is a political system with multiple levels of government, each of which has some degree of autonomy from the others. The United States has a federalist system that encompasses the national government, states, and localities. The United States adopted federalism in part to prevent abuses of power and to preserve individual liberty. Federalism serves those goals by helping individuals to “vote with their feet,” thereby fostering interjurisdictional competition. Such benefits are most likely to be found in federal systems where subnational governments have an incentive to compete for residents and businesses because they must raise most of their revenue from their own taxpayers, as opposed to receiving subsidies from the central government. In many ethnically divided societies, federalism can also enhance liberty by reducing ethnic conflict and oppression. However, federalism can also endanger liberty or property by empowering subnational governments to exploit owners of immobile assets, most notably land. Federalism can also permit local majorities to oppress local minorities. Contrary to James Madison’s expectations, federalism in the current era is unlikely to constrain the national government since states have incentives to support the expansion and centralization of power in Washington. Whether federalism enhances liberty depends on circumstances and institutional design.


Glen Staszewski: The Dumbing Down of Statutory Interpretation
Michael Ramsey

Glen Staszewski (Michigan State University College of Law) has posted The Dumbing Down of Statutory Interpretation (Boston University Law Review, Vol. 95, No. 1, 2015) on SSRN. Here is the abstract: 

This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. The Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law, and they assume that the traditional hierarchy of legal sources is exclusive, and that the function of statutory interpretation is to ascertain the meaning of the law.

This Article challenges each of these assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and “interpretive methodology” and “agency decision making” should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. The Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems.