Why Congress May Not Overrule the Dormant Commerce Clause
117 Pages Posted: 13 Apr 2005
The Supreme Court has repeatedly declared that Congress may not authorize the states to violate the Constitution. At the same time, however, the Court has ruled that Congress may authorize the states to engage in conduct that would otherwise violate the Dormant Commerce Clause (DCC). Initially, the Court defended this unprecedented power to overrule the Dormant Commerce Clause on the untenable (and constitutionally dubious) ground that the DCC was really just a statutory inference drawn from Congress's regulatory silence. For the past 60 years, the Court has defended Congress's power on the ground that the Dormant Commerce Clause does not restrict the coordinated effort of the federal government and states in regulating interstate commerce.
As I argue, the Court's coordinated effort theory fails to justify the extraordinary power the Court has yielded to Congress. The presence of coordinated action by Congress and the states, despite its rhetorical allure, has no constitutional significance. Such coordination does not provide a sound basis for removing constitutional limitations on state conduct; for example, such coordination would not allow Congress to overrule the Equal Protection Clause's restrictions on state authority. Moreover, as a practical matter, such a view invites the very same centrifugal, state protectionist dangers that adoption of the Constitution in general and the Commerce Clause in particular was meant to forestall. And, lastly, such coordination undermines in a dangerous fashion the ability of the electorate to determine which governmental entity - Congress or the state - is responsible for policies adopted pursuant to such congressional authorization, thereby weakening the democratic accountability upon which our system of government constitutionally depends. Indeed, this last feature, which has been overlooked by both the Court and commentators alike, is of particular concern since the blurring of democratic accountability erodes the political safeguard upon which all defenders of this power rely - namely, that Congress can be trusted to police the states' use of their approved power.
Rushing to the Court's aid, several commentators, such as William Cohen, Mark Tushnet, and Larry Tribe, have defended Congress's right to overrule the Court's Dormant Commerce Clause decisions on the ground that the Dormant Commerce Clause's limitation on state authority is weak or only provisional, not strong or absolute like the First Amendment or Equal Protection Clause. As I explain, however, depicting the Dormant Commerce Clause as only a weak or presumptive limit on state authority cannot be squared with the constitutional text or constitutional structure. Either the Dormant Commerce Clause is a constitutional limit on the states or it isn't; there is no middle ground available for treating the Dormant Commerce Clause as a constitutional limitation on state power but one that is abrogable by Congress. Indeed, the Dormant Commerce Clause is no different in this respect from the Contract Clause or Privileges & Immunities Clause of Article IV, neither of which Congress may abrogate.
As a final possibility, one might defend Congress's power to overrule the Dormant Commerce Clause on the ground that Congress may delegate its commerce power, which is not subject to the constraints of the Dormant Commerce Clause, to the states. As I explain, however, not only has the Court refused to go down that analytical path, the Constitution itself precludes Congress from delegating its legislative authority over commerce to the states. I conclude by showing that, while Congress may not authorize unconstitutional conduct by the states, there are many ways in which Congress may partner with the states in regulating commerce, provided that the states' actions are independently constitutional.
Keywords: Dormant Commerce Clause, commerce power, Supreme Court
JEL Classification: K10, K20, K23
Suggested Citation: Suggested Citation