Preemption and Commerce Clause Issues

As demonstrated in the preceding cha pters, much
commercial conduct is subject to overlapping federal and state
regulator y schemes. In many instances, including those
involving federal and state antitrust laws, those schemes a re
largely complimentary. In other cases, however, federal and
state la ws may serve different policy goals, if not actua lly
conflict. Relatedly, state laws may impact interstate commerce
in a way that r aises constitutional concer ns. This chapter
addresses issues tha t commonly arise in antitrust and business
tort litigation under the Supremacy a nd Commerce Cla uses of
the U.S. Constitution. Eds.
A. Introduction
The business activities that give rise to antitrust and business tort
disputes commonly involve interstate commerce. Examining the scope of
Congress’s power under the Commerce Clause, which provides that
“[t]he Congress shall have Power . . . [t]o regulate Commerce . . . among
the several States,”
the Supreme Court has held that Congress may
regulate not only activities “in” interstate commerce – i.e., those that take
place across state boundaries but also activities “affecting” such
commerce. Thus, even commercial transactions of a purely intrastate
character may be regulated under the Commerce Clause if they
substantially affect interstate commerce.
The intersection of state business tort law and interstate commerce
raises two distinct, but related, constitutional issues. First, to what extent
does federal antitrust law, which regulates interstate and foreign
preempt state tort law in restraint of trade and unfair
competition cases? Second, under what circumstances does the
. U.S. CONST. art. I, § 8, cl. 3.
. See Gonzales v. Raich, 545 U.S. 1, 17 (2005); Hodel v. Virginia Surface
Mining & Recla mation Ass’n, 452 U.S. 264, 276-77 (1981); Wickard v.
Filburn, 317 U.S. 111, 128-29 (1942).
. See, e.g., Sherman Act, §§ 1, 2, 15 U.S.C. §§ 1, 2; Clayton Act, § 7, 15
U.S.C. § 18.
410 Business Torts and Unfair Competition Hand book
application of state tort law to activities affecting interstate commerce
exceed the states’ powers of regulation under the “dormant” aspect of the
Commerce Clause, which, under longstanding Supreme Court precedent,
impliedly limits the permissible scope of state regulation affecting
interstate commerce?
Preemption and the Commerce Clause are often analyzed together,
but courts and commentators struggle to articulate the link between the
two doctrines. The Court has distinguished between these clauses in the
Constitution, noting that while the dormant Commerce Clause creates a
right “to engage in interstate trade free from restrictive state regulation,”
the Supremacy Clause
does not create any rights; instead, it secures the
existence of federal rights by ensuring that they take priority over
conflicting state law.
Some commentators analyze both doctrines as
virtually interchangeable tools that Congress and the courts can use to
allocate responsibilities among Congress and the states to regulate
interstate commerce.
B. Preemption
The Supremacy Clause provides for the supremacy of federal law
over the law of the individual states:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof . . . shall be the supreme Law of the Land;
and the J udges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
The Supreme Court has established three circumstances under which
it will consider state law to have been preempted by federal law. First,
. U.S. CONST. art. VI, cl. 2.
. Dennis v. Higgins, 498 U.S. 439, 448, 450 (1991).
. See Jim Chen, A Vision Softly Creeping: Congressional Acquiescence
and the Dor mant Commerce Clause, 88 MINN. L. REV. 1764, 1782 (2004)
(“Congress enjoys virtually unfettered discretion to reassign
responsibility over an aspect of interstate commerce. As a general r ule,
Congress may choose to delegate regulatory responsibility over interstate
commerce to the states. Complete delegation negates any j udicial role
under the dormant Commerce Clause. Con gress may also elect to craft a
more nuanced approach to ‘cooperative federalism’ by adopting a careful
mix of expressly preemptive statutory provisions and savings clauses.”).
. U.S. CONST. art. VI, cl. 2.

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