At its best, originalism encompasses most of the arguments critics claim it cannot, and does justice to both the text and structure of the Constitution.
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.