A Vision Softly Creeping: Congressional Acquiescence and the Dormant Commerce Clause

Abstract:     
The Supreme Court's dormant commerce clause doctrine, a body of jurisprudence as deep as it is despised, provides the strongest constitutional bulwark against hostile state regulation and taxation of the national economy. Academic critiques of the dormant commerce clause, typically rooted in the doctrine's lack of a firm textual basis in the Constitution, overlook the crucial role of Congress. Congress's persistent failure to repeal the dormant commerce clause is the singularly impressive feature of American constitutionalism's approach to protecting free trade. Though it has failed to win academic support, congressional silence provides at least an adequate and perhaps even a persuasive case for preserving the dormant commerce clause.

As a general rule, Congress cannot override judicial interpretations of the Constitution merely by passing ordinary legislation. The dormant commerce clause is an important exception. Despite enjoying virtually unfettered discretion to override dormant commerce clause decisions, Congress has rarely used that power. Constitutional significance abides throughout: in order to evaluate the propriety of contemporary dormant commerce clause doctrine, we must assess not only Congress's power to override the courts, but also Congress's actual course of performance in the exercise of that power.

I then examine the theoretical question of congressional competence. Congress's power to square state law with the commerce clause should not be compared with, but rather distinguished from, other constitutional doctrines that limit state and local authority over the national economy. A pair of supremacy clause doctrines - intergovernmental immunity and preemption - provide especially useful analogies.

Finally, I take an unapologetically pragmatic view of congressional performance. The dormant commerce clause doctrine effectively treats the commerce clause as though it were an initial assignment of common law authority to the federal courts. Congress's persistent failure to reassign that authority to itself, to federal regulatory agencies, or to the states suggests that the federal courts have demonstrated reasonably sound judgment on issues of interstate trade and taxation. This meritorious history deserves constitutional respect. A pragmatic approach to constitutional law - one that treats questions of rights, privileges, duties, powers, and immunities as if they materially affected the well-being of real human beings - can happily accept the de facto ratification of the dormant commerce clause through congressional inaction.

Keywords: dormant commerce clause, commerce clause, interstate commerce, supremacy clause, intergovernmental immunity, preemption, congressional acquiescence, delegation

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