The Most Important Constitutional Doctrine You’ve (Probably) Never Heard of

Just saying “dormant commerce clause,” makes the eyes start to glaze. Despite its boring label, it is perhaps the most important judicial doctrine most people have never heard of. Outside those sections of the U.S Constitution where it expressly prohibits states from enacting certain types of laws (most notably in Article 1, Section 10), we typically think Congress needs to enact legislation to preempt contradictory state laws. But in a long line of cases spanning almost 200 years, the U.S. Supreme Court has interpreted the power to regulate interstate commerce, delegated to Congress in article 1, section 8, as containing an exclusive grant of power to Congress. Under this doctrine, U.S. courts have struck down multitudes of state laws regulating or burdening of interstate commerce as unconstitutional even though those states laws do not contravene or contradict any act of Congress.

It sounds boring and technical. (Or technical and therefore boring.) Here’s the non-boring upshot, though: The doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S. The same outcome almost certainly would not have occurred if the matter had been left to Congress.

The reason results from differing institutional attributes of legislatures and judiciaries. People must persuade Congress to act. That requires an investment of time and resources, requires coordinated activity among numerous citizens and groups, and requires competing with other people and groups for Congress’s time and attention. If a state adopts a law discriminating against interstate commerce, it would take time and resources to get the matter on Congress’s agenda, let alone getting Congress affirmatively to forbid the type of law the state enacted.

In contrast, however, a single person being hurt by a state law discriminating against interstate commerce can get a judge to act. While lawsuits are not necessarily cheap, they can be significantly cheaper than the corresponding investment it would take to get Congress to act.

So authorizing judges to strike down state laws burdening or discriminating against interstate commerce is a far more effective means of protecting free interstate commerce than leaving its protection to Congress.

But while hugely important for American economic development, the doctrine is not without its controversies and puzzles.

The most obvious problem with the doctrine is the constitutional basis for judicial action. After all, a power granted to Congress to act if and when it chooses to act does not necessarily imply a power for judges to act when Congress has in fact not chosen to act.

The traditional argument for the dormant commerce clause is that delegation to Congress of power to regulate interstate commerce is an exclusive grant of power. States then unconstitutionally intrude on what the Constitution exclusively delegates to Congress when they attempt to regulate interstate commerce. Textually persuasive? Eh . . .

Relatedly, dormant commerce clauses decisions by the courts are constitutional decisions that can nonetheless be overturned by a simple majority vote of Congress. This has been approved by the courts.

Here’s the sequence. The U.S. Supreme Court decides that state laws of a certain sort constitute regulations of interstate commerce and are therefore unconstitutional. In response, Congress adopts a law giving permission to states to adopt the type of law the U.S. Supreme Court declared unconstitutional. States then reenact exactly the same laws they had previously, and those laws are once again challenged all the way to the U.S. Supreme Court. The U.S. Supreme Court now rules that the laws are constitutional; the very same laws it struck down as unconstitutional in its earlier decision. The reason the Court gives for allowing this is that the power to regulate interstate commerce is given to Congress, and Congress decided that the means by which it will regulate interstate commerce is to allow the states to regulate interstate commerce.

There are two curiosities about this. First, in other areas, the Court does not allow Congress to delegate to other institutions powers that the Constitution exclusively delegates to Congress. Only Congress can exercise its exclusive powers. It seems a bit of legerdemain to suggest that Congress regulates interstate commerce by deciding to have the states regulate it instead.

Secondly, there is the interesting question of whether the Fourteenth Amendment might suggest analogous interplay between Congress and the Court. Section five of the Fourteenth Amendment expressly grants the power to enforce the Fourteenth Amendment to Congress, not to courts. While the modern Supreme Court has severely limited what it means for Congress to “enforce” the Fourteenth Amendment, and has claimed for courts most of the power to interpret and enforce the provisions, nonetheless, the language of section five invites the possibility that the Fourteenth Amendment could be applied by courts in a similar fashion to the dormant commerce clause.

Here would be the sequence. The U.S. Supreme Court interprets the Fourteenth Amendment to say one thing, striking down (or sustaining) state laws challenged under the Amendment. Congress responds under the power delegated to it by section five of the Amendment (under its exclusive enforcement power?), enacting a law stating the Fourteenth Amendment will be enforced in a manner opposite of the Supreme Court’s holding. The same state laws are relitigated up to the Supreme Court, which then overturns its earlier decision because of the congressional action.

There are numerous constitutional curiosities about the dormant commerce clause. As a historical matter, however, the doctrine has had, and continues to have, a profound effect on the development of the U.S. national economy and the country’s prosperity.

Reader Discussion

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on February 27, 2018 at 16:21:53 pm

I find the originalist arguments against the dormant commerce clause kind of silly. It is a rejection of Chief Justice John Marshal in the 1824 case of Gibbons v. Ogden when many of the Founders were still alive. And yet we are to believe that they all just forgot to object?

All of the powers of Congress were meant to be exclusive. As was said during the constitutional convention: Congress's "powers extend only to matters respecting the common interests of the union, and are specially defined, so that the particular states retain their sovereignty IN ALL OTHER MATTERS.” (ie exclusive) (letter from Roger Sherman and Oliver Ellsworth during the constitutional convention, Sept. 26, 1787) https://books.google.com/books?id=xEHGzWUDB-gC&pg=PA492&lpg=PA492. James Willson during the Constitutional Convention noted: "The natil. Govt. is one & yt. of the states another—Commerce, War, Peace, Treaties, &c are peculiar to the former—certain inferior and local Qualities are the province of the Latter—there is a line of separation.” (explicitly making the case for completely separate spheres of power, and exclusive power in Congress as to interstate commerce) https://books.google.com/books?id=JVQSAAAAYAAJ&pg=PA416&lpg=PA416.

Chief Justice John Marshal makes the case for this as applied to the exclusive taxing power as well in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments, nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress."

These arguments only seem strange in light of the modern commerce clause jurisprudence which gives to the federal government the power to regulate almost anything. If the federal commerce clause was limited to purely interstate activities, and the states were given exclusive power to regulate intrastate activities, we could restore the original balance.

Do states have the power "To borrow on the credit of the United States?" No, obviously not. Can they regulate commerce with foreign Nations or Indian Tribes? Clearly no. Can they establish rules of naturalization or bankruptcies? Obviously not. Coin Money? No. Establish federal Post Offices? No.. Etc. Go through each and every power given to Congress and you will see a power that no state can wield. Why would the interstate commerce clause be any different?

Especially given what the Founders had just gone through under the Articles of Confederation in which different states tried to regulate each other. James Madison speaking on the state's issuing their own currencies wrote: “Among the numerous ills with which this practice is pregnant is that it is producing the same warfare & retaliation among the States as were produced by State regulations of commerce." https://founders.archives.gov/documents/Madison/01-09-02-0026. Regulation of interstate commerce by states was seen as an evil that the new Constitution was designed to prevent.

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Devin Watkins
on February 27, 2018 at 22:10:59 pm

Thanks for writing this! It's now my go-to article for explaining the dormant commerce clause.

One point about this sentence: "...in other areas, the Court does not allow Congress to delegate to other institutions powers that the Constitution exclusively delegates to Congress."

In my opinion, it is shocking the amount of power that Congress DOES allow Congress to delegate to other institutions, namely the administrative agencies. As an old professor Mike Uhlmann once said, "Congress is the strongest branch of our government... when it WANTS to be!"

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CJ Wolfe
on February 28, 2018 at 10:57:28 am


"These arguments only seem strange in light of the modern commerce clause jurisprudence which gives to the federal government the power to regulate almost anything."

Now that is the most succinct ( and correct) statement of the issue I have read in some time.

BTW: I always thought "the dormant commerce clause" was a misnomer as there is nothing *dormant* about it.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.