The Flawed Economics of the Dormant Commerce Clause
1998; Routledge; Volume: 39; Issue: 4 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)Taxation and Legal Issues
ResumoShhh! If you keep very, very quiet, and listen really, really carefully, you just might hear it rustling around underneath the Constitution. Like the sound of a tree falling in a deserted forest, constitutional law commentators are never sure if it truly exists. And, like people who claim to have seen UFOs, state governments swear that it exists and is here to conquer them. What is this lurking presence that so perplexes the mind? It is the doctrine of the Commerce Clause, perhaps the Supreme Court's best known invocation of constitutional silence.(1) And, to continue mixing metaphors, that unseen constitutional doctrine acts like a colorless, odorless toxic gas: a silent killer of state laws affecting interstate commerce. Exactly what is this hideous thing? In short, the Commerce Clause is a constitutional law doctrine that says Congress's power to regulate Commerce ... among the several States(2) implicitly restricts state power over the same area.(3) In general, the Commerce Clause places two main restrictions on state power. First, Congress can preempt state law merely by exercising its Commerce Clause power.(4) Second, the Commerce Clause itself--absent action by Congress--restricts state power; the grant of federal power implies a corresponding restriction of state power.(5) This second limitation has come to be known as the dormant Commerce Clause because it restricts state power even though Congress's commerce power lies dormant.(6) Generally, the Commerce Clause doctrine prohibits states from unduly interfering with interstate commerce.(7) The Court has developed two tests to determine when state regulation has gone too far. Under one test, the Court balances the burden on interstate commerce against the state's interest in its regulation.(8) Under the second test, states are prohibited generally from enacting laws that discriminate against interstate commerce.(9) Over the last two decades, the Commerce Clause has received much scholarly attention, with commentators either proposing refinements to the balancing test(10) or challenging the constitutional basis for the doctrine as a whole.(11) The commentators, however, generally have been kind to the antidiscrimination test of the Commerce Clause.(12) Indeed, even Justice Antonin Scalia, who has argued vigorously (in dissent) that the Court should abandon the Commerce Clause,(13) applies the antidiscrimination principle.(14) Swimming against this tide, this Article argues that the Court's application of the antidiscrimination test is, in some cases, in conflict with the underlying purpose of the Commerce Clause: to protect the national economic market from opportunistic behavior by the states.(15) The Court has never held that discrimination between in-state and out-of-state commerce, without more, violates the Commerce Clause. Rather, the Court has explained that the Commerce Clause is concerned with state laws that both: (1) discriminate between instate and out-of-state actors that compete with one another, and (2) harm the welfare of the national economy.(16) Thus, a discriminatory state law that harms the national economy is permissible if in-state and out-of-state commerce do not compete.(17) Conversely, a state law that discriminates between in-state and out-of-state competitors is permissible if it does not harm the national economy.(18) The Court has been careless in applying the antidiscrimination test; in many cases, neither of the two requirements--interstate competition or harm to the national economy--is ever mentioned.(19) As the Court stated just last term, these requirements have more often than not ... remained in this Court's opinions on state discrimination subject to review under the Commerce Clause.(20) The reason the first requirement, competition between in-state and out-of-state actors, goes unstated is fairly obvious--in most cases (all except two before the Supreme Court), it is clear that instate and out-of-state actors compete in the same market. …
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