Preemption and Commerce Clause Issues

As demonstrated in the preceding chapters, much
commercial conduct is subject to overlapping federal and state
regulatory schemes. In many instances, such as the case of the
federal and state antitrust laws, those schemes are largely
complimentary. In other cases, however, federal and state law
may serve different policy goals, if not actually conflict.
Relatedly, state laws may impact interstate commerce in a way
that raises constitutional concerns. This chapter addresses
issues that commonly arise in antitrust and business tort
litigation under the Supremacy and Commerce Clauses of the
U.S. Constitution. – Eds.
A. Introduction
For constitutional purposes, the business activities that give rise to
antitrust and business tort disputes commonly involve interstate
commerce. Examining the scope of Congress’ power under the
Commerce Clause, which provides that “[t]he Congress shall have Power
. . . [t]o regulate Commerce . . . among the several States,”1 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” commerce. Thus, even commercial
transactions of a purely intrastate character may be regulated under the
Commerce Clause if they substantially affect interstate commerce.2
The intersection of state business tort law3 and interstate commerce
raises two distinct, but related, constitutional issues. First, to what extent
does federal antitrust law, which regulates interstate and foreign
1. U.S. CONST. art. I, § 8, cl. 3.
2. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276-77
(1981); Wickard v. Filburn, 317 U.S. 111, 127-28 (1942).
370 Business Tort Law
commerce,4 preempt state tort law in restraint of trade and unfair
competition cases? Second, under what circumstances does the
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 Clause5 does not create any rights; instead, it secures the
existence of federal rights by ensuring that they take priority over
conflicting state law.6 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.7
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;
4. See, e.g., Sherman Act, §§ 1, 2, 15 U.S.C. §§ 1, 2; Clayton Act, § 7, 15
U.S.C. § 18.
5. U.S. CONST. art. VI, cl. 2.
6. Dennis v. Higgins, 498 U.S. 439, 447-50 (1991).
7. See Jim Chen, A Vision Softly Creeping: Congressional Acquiescence and
the Dormant 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 rule, Congress may
choose to delegate regulatory responsibility over interstate commerce to
the states. Complete delegation negates any judicial role under the
dormant Commerce Clause. Congress 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.”).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT