'Drawn from Local Knowledge... And Conformed to Local Wants': Zoning and Incremental Reform of Dormant Commerce Clause Doctrine

Abstract

With the proliferation of measures by local governments to preserve the local character of their communities in the face of sprawling retail development, the trickle of land use cases in which the dormant Commerce Clause plays a significant role seems likely to turn into a flood akin to the surge of dormant Commerce Clause garbage cases in the 1990's. As these cases begin to percolate up through the system, it seems likely that the Supreme Court will soon be confronted with demands to clarify how its dormant Commerce Clause doctrine applies in zoning cases. When it does so, it will also have to confront a doctrine that for decades has been harshly criticized by many legal commentators and a few Justices for its theoretical incoherency and unpredictable (some would say ad hoc) outcomes. In particular, the Court's confused approach in the branch of dormant Commerce Clause doctrine analyzing state laws thought to have discriminatory effects (as distinct from laws motivated by discriminatory intent) has drawn much of the critical fire. But despite this persistent criticism from within and without, the Court has not yet budged from this aspect of its doctrine.

This article argues that the time for such a reappraisal is long overdue, and that the coming wave of dormant Commerce Clause zoning cases provides a unique opportunity to establish a beachhead for further reforms of dormant Commerce Clause doctrine. Accordingly, this article seeks to provide a principled argument that application of the discriminatory effects branch of the dormant Commerce Clause doctrine is unjustified in zoning cases. Part II begins the discussion with an examination of the basic framework of dormant Commerce Clause doctrine and illustrates how the discriminatory effects prong of that framework has resulted in considerable doctrinal ambiguity. We also identify the special problems that the effects analysis poses for zoning. Part III then summarizes reform proposals to date, most of which are focused on the effects analysis. The argument builds on these earlier effects in an attempt to show that enforcement of the discriminatory effects prong of the dormant Commerce Clause doctrine is of limited value in advancing the goals of the dormant Commerce Clause doctrine, and reinvigorates classic Supreme Court doctrine recognizing the value of preserving local regulation of local concerns.

Keywords: Constitution, constitutional law, economic regulation, interstate commerce, commerce clause, dormant commerce clause, negative commerce clause, discrimination, discriminatory effects, zoning, land use, local needs, urban sprawl, big box, growth management, chain stores, environmental, C & A Carbone