CHAPTER 8

The Dormant Commerce Clause

§8.1 INTRODUCTION AND OVERVIEW

On its face, the Commerce Clause, Article I, §8, cl. 3, is merely an affirmative grant of legislative power to Congress, authorizing it “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In Chapter 5, we examine the extent to which Congress may legislate under this clause. One of the first Commerce Clause issues to confront the Supreme Court, however, was whether this affirmative grant of power to Congress also carried with it the negative inference that the states are thereby precluded from regulating interstate and foreign commerce.

The Court has in fact construed the Commerce Clause both as a grant of power to the national government and as a limitation on the power of the states. Where Congress has exercised its affirmative power under the Commerce Clause by enacting federal legislation, any conflicting state laws will be struck down under the Supremacy Clause and principles of preemption. See §6.2. Yet even where Congress has not legislated under the Commerce Clause and the clause thus remains dormant, state laws that burden or discriminate against interstate or foreign commerce may still be invalidated on the ground that they violate the dormant or negative Commerce Clause. The Commerce Clause thus serves “as a negative and preventive provision against injustice among the States themselves. …” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 193 n.9 (1994). In its dormant or negative aspect, the clause “reflect[s] a central concern of the Framers that … in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U.S. 322, 325-326 (1979).

Suppose, for example, that state C passes a law requiring that all crates of apples sold or shipped into the state be labeled with either the applicable U.S. Department of Agriculture (USDA) grade, or no grade at all. Many of the apples sold in state C are grown elsewhere. Until passage of the law, out-of-state apples were often labeled in accordance with special grading systems that were superior to the USDA grades. Out-of-state sellers must now abandon their use of special grades if they are to have continued access to state C’s market. Could an out-of-state apple dealer challenge the state C law on the ground that it violates the dormant Commerce Clause? See Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977) (upholding such a challenge under the dormant Commerce Clause). In this chapter, we will consider this and other problems as we examine the circumstances under which the dormant Commerce Clause may be used to strike down state regulatory or tax measures.

Before proceeding, however, it should be noted that not all members of the modern Court have subscribed to the notion that there should be a “dormant” or “negative” aspect to the Commerce Clause. In a 1997 decision, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, argued that there is no valid textual or other justification for the Court’s dormant Commerce Clause jurisprudence, and urged that the clause should at most be used to strike down discriminatory state taxes on interstate or foreign commerce; beyond that, they said, the task of protecting interstate commerce from state interference should be left exclusively to Congress. Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 610-620 (1997) (Thomas, J., Scalia, J., and Rehnquist, C.J., dissenting). Justices Thomas and Scalia then added that the so-called dormant Commerce Clause should not play a role even when states impose discriminatory taxes on interstate or foreign commerce; instead, the Court in such cases should rely on the Import-Export Clause of Art. I, §10, cl. 2. Id. at 621-637. And see South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171 (1999) (declining to address the state’s argument that the Court should “‘formally reconsider’ and ‘abandon’ its negative Commerce Clause jurisprudence” because the state did not present the argument in a timely manner). Needless to say, if these views were to be adopted by a majority of the Court, our understanding of the dormant Commerce Clause—not to mention the length of this chapter!—would be radically altered.