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Michael Greve on Commerce and the Court
Michael Ramsey

At Liberty Law Blog, the always entertaining, provocative and insightful Michael Greve writes about the dormant commerce clause in Commerce and the Court:  

The justices operate under and with a constitution that (a) teems with clauses that are plainly intended to protect a free internal market against state depredations and (b) commits the protection of that principle chiefly to the Supreme Court. In the wake of the New Deal, however, the justices persuaded themselves that the protection of interstate commerce is almost exclusively the province of Congress.  True: interstate commerce that must rely on Congress for protection is already half-dead, but that can’t be helped. In particular, federal justices mustn’t protect commerce under the so-called “dormant” Commerce Clause, which (in hundreds of decisions) had been understood to prohibit state interferences with commerce even when Congress had remained silent. The power to regulate commerce, the argument goes, belongs to Congress, not the Court. The dormant Commerce Clause is Lochner in interstate drag, and we can’t have that.

This thinking (loosely speaking) has had enormous gravitational force. Originally peddled by New Deal partisans, it has in modern times been inherited and sharpened by committed originalists. There is no dormant Commerce Clause, they say. The Court should abandon it or at least, confine it to the core purpose of prohibiting “rank” discrimination. If in consequence the commerce of the United States buckles under protectionist and exploitative state regulation, so be it: it just shows how principled we are.

As is often the case, I have some trouble telling whether Professor Greve is arguing from originalist principles or something else.  But as to the dormant commence clause, without attempting here to be definitive, I would say that its textual foundations are weak:

1.  Article I, Section 10 lists various things (for example, war and treatymaking) that states cannot do.  Regulations affecting interstate commerce are not on that list.

2.  Further, Article I, Section 10 indicates a very high standard for prohibitions of state power by implication.  Apparently the drafters did not think that warmaking power and treatymaking power could be safely prohibited by implication from grants of those powers to the federal government and the imperatives of the federal structure.  It's hard to say that  state regulations affecting interstate commerce carry a stronger implied prohibition than state war and treatymaking power.  This assessment is consistent with Hamilton's view of negative implications on state power in Federalist 32, in which he wrote that a state power would be impliedly precluded by a grant of that power to the federal government only if exercise of the state power were "absolutely and totally contradictory and repugnant" to federal power.

3.  In addition, the Constitution includes a provision that goes to the basic policy of the dormant commerce clause: the privileges and immunities clause of Article IV.  True, it probably does not go as far as the modern dormant commerce clause might -- but that only indicates that the framers chose a lesser protection for the national market than Professor Greve thinks they should have.

I hesistate to say these points are decisive because many people in the immediate post-ratification era seemed to think there was some implied preclusion of state regulation of interstate commerce (although they were divided on its scope), and because Brannon Denning (my co-author from a while back and one of the nation's leading authorities on the dormant commerce clause) thinks there is some originalist basis for it.  But  Professor Greve needs a better argument than merely the claim that the Constitution "teems with clauses" intended to "protect a free internal market." Maybe it does, but the dormant commerce "clause," found nowhere in the text, is not one of them. So it's hard to fault textualist originalists for doubting its merits.

FURTHER THOUGHT:  Michael Perry writes to remind me of this outstanding originalist defense of the dormant commerce clause: Barry Friedman (New York University School of Law) and Daniel Deacon,  A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause (Virginia Law Review, Vol. 97, p. 1877, 2011) [noted here].