Reconstructing the dormant commerce clause doctrine.

AuthorDenning, Brannon P.


In this Article, I argue that the alleged incoherence and unpredictability of the dormant Commerce Clause doctrine (DCCD) is rooted in the Supreme Court's search, through the years, for a stable set of rules enabling it to distinguish permissible from impermissible state regulations of interstate commerce and commercial actors. Its lack of success, the Article argues, is due in large part to the Court's inability to settle on the constitutional command the doctrine was to enforce. Historically, the Court would promulgate a set of rules, apply them for a time, then alter or modify them as the rules became unsatisfactory.

Recent cases with similar facts, yet producing different results, suggest that the superficial stability the Court has achieved with the DCCD in recent years is largely an illusion. Both the "antidiscrimination principle" and the so-called 'Pike balancing"--each representing one of the two tiers in the Court's standard of review--are experiencing the same decline and decay as prior rules regimes. Recent cases suggest that the Court appears poised once again to alter the DCCD but is proceeding in an undertheorized, ad hoc manner.

Using the "constitutional decision rules" model of constitutional interpretation developed by Mitchell Berman, and influenced by doctrinal theorists like Richard Fallon and Kermit Roosevelt, I argue that the DCCD could be improved by settling on a "constitutional operative proposition" rooted in the text and history of the Constitution and the Commerce Clause, and devising "decision rules" that would implement that constitutional command.

I conclude that the Framers centralized commercial regulation to prevent state regulations of interstate commerce likely to produce friction among states, incite retaliation, and undermine political union. I specifically reject any attempt to impute a free-trade ideology to the Framers. Decision rules enforcing the DCCD should, therefore, go no further than addressing the sorts of "discrimination" that produce this union-undermining effect. In particular, I would have the Court discard the "balancing" of burdens and benefits flowing from truly nondiscriminatory state and local laws. Applying the reconstructed decision rules to several difficult doctrinal areas, I argue, results in either a more satisfactory explanation for actions the Court has taken, or shows more clearly how the Court has incorrectly resolved particular issues.

TABLE OF CONTENTS INTRODUCTION I. THE DECISION RULES MODEL OF CONSTITUTIONAL INTERPRETATION: AN OVERVIEW A. Identifying the Constitutional Operative Proposition B. Crafting Decision Rules and Constitutional "Calcification" II. THE SUPREME COURT AND THE DCCD: A SEARCH FOR DECISION RULES A. Origins: The Marshall and Taney Courts 1. The Marshall Court and the DCCD 2. The Taney Court B. Cooley's National/Local Test C. The Direct/Indirect Test D. The Rise of the Antidiscrimination Principle E. "Balancing" and the Emergence of the Modern Approach III. THE COURT, THE DCCD, AND "CONSTITUTIONAL CALCIFICATION" A. Decision Rules and Calcification 1. Minor Calcification 2. Major Calcification B. Calcification and the DCCD 1. Pike Balancing a. Loss of Fit b. Subterfuge c. Major Calcification 2. The Antidiscrimination Principle a. Loss of Fit b. Subterfuge i. Hunt, Exxon, and Discriminatory Effects ii. Missing Linkages: West Lynn Creamery and Walsh iii. Flow Control Ordinances and Forced-use Rules: C & A Carbone and United Haulers c. Major Calcification IV. CONSTRUCTING A DECISION RULES MODEL OF THE DCCD A. The Constitutional Operative Proposition 1. Critiquing the Court's Modern Contenders a. The Framers, Free Trade, and the Commerce Clause b. The Representation-Reinforcing Justification for the DCCD 2. The Commerce Clause as a Guarantee of Political Union B. Crafting Decision Rules 1. General Considerations in Decision Rule Formation 2. Criteria for Fashioning Decision Rules 3. Types of Decision Rules in Constitutional Law C. New Decision Rules for the DCCD 1. Goodbye to Balancing 2. Policing Discrimination a. "Discrimination" and the DCCD: The Current Decision Rule b. The Easy Case of Facial Discrimination c. Hard Cases: Discriminatory Effects and Discriminatory Purpose d. Limiting the Decision Rule V. APPLYING THE NEW DECISION RULES MODEL: FOUR HARD CASES A. Dean Milk v. Madison and the Problem of "Local" Discrimination B. Cuno v. DaimlerChrysler, Inc. and Economic Development Incentives C. United Haulers, Davis, and the Public-Private Distinction D. Exxon v. Maryland and the Problem of Discriminatory Effects CONCLUSION [N]ot only does the judicial history of the Commerce Clause show cyclical fluctuations, such as the long look will generally reveal in the Court's work, but that, in the shorter view, there is more confusion than in other areas. Lines of cases emerge, have their progeny and come to arid ends; and rules, formulas, and labels, to whose comfortable coherence judges unceasingly try to escape from the distress of disconnected judgments, have short lives, and if not abandoned, are soon gutted of meaning.

--Alexander M. Bickel (1)


In some form, the dormant Commerce Clause doctrine (DCCD) has been a feature of American constitutional law for nearly two centuries. (2) Though it has undergone significant doctrinal evolution over the years, (3) the central premise--that the centralization of commercial regulatory authority in Congress implied judicially enforceable restraints on the states' regulation of interstate commerce (4)--has remained constant. Despite the Court's historic trouble stating and applying the DCCD, the current "rules" governing DCCD cases have remained relatively stable since the 1970s.

Black-letter law, in fact, could not be more clear. For non-tax regulations, the Court applies a two-tiered standard of review. (5) For those state or local laws that "discriminate," on their face or in their purposes or effects, against interstate commerce or interstate commercial actors, strict scrutiny applies, requiring the government to demonstrate a legitimate (i.e., non-protectionist) purpose for the law, and that there are no less discriminatory means to effectuate that interest. (6) It is a test that is nearly always fatal in fact. (7) For nondiscriminatory measures that nevertheless burden interstate commerce, a deferential balancing test is employed: to prevail, the challenger must demonstrate that the burdens on interstate commerce are "clearly excessive in relation to the putative local benefits." (8)

These rules are easy to recite, but their application is notoriously difficult, resulting in cases with similar facts being decided differently, and the different outcomes justified on the basis of tendentious distinctions. (9) A great deal of scholarship on the DCCD has sought to unify many of these divergent opinions with grand theories of the DCCD promising to reconcile apparently irreconcilable results. (10) While I propose my own grand theory of the DCCD in this Article, I do it from the top down, instead of from the bottom up. In other words, I concede that a number of the Court's DCCD cases are, in fact, impossible to reconcile, suggesting that something is amiss in the Court's formulation of the doctrine, its application of it, or both.

I propose here to reconstruct the DCCD along a "decision rules" model. As explained in an important article by Mitchell Berman, (11) the creation of constitutional doctrine is best understood as consisting of two distinct operations. The first involves identifying the "constitutional operative proposition[ ]," that is, what the text of the Constitution requires. (12) At the second step, the Court creates "decision rules" that implement that constitutional directive. (13) Building on Berman's insights, Kermit Roosevelt has used the model to identify pathologies in constitutional doctrine that often result from a conflation of doctrinal rules with constitutional operative propositions, where the rules are seen as ends instead of means. (14) As I argue below, the DCCD is currently showing signs of just this sort of "calcification," to use Roosevelt's term.

Part I briefly sketches the decision rules model of interpretation and Roosevelt's theory of calcification. Part II is a historical review of the DCCD; its thesis is that the Court wrestled with the question of which decision rules to adopt throughout the nineteenth and early twentieth centuries. Only in the second half of the twentieth century did its decision rules for non-tax cases stabilize. (15) In Part III, I argue that the stability is now eroding; the DCCD is showing signs of calcification, resulting in, among other things, a conflation of decision rules with constitutional commands. This calcification, as well as the historic difficulty the Court has had maintaining stable decision rules for the DCCD, can be traced to the Court's historic failure to articulate an adequate constitutional operative proposition for the DCCD.

Part IV then supplies what the Court has not--at least not consistently: an operative proposition with firm historical and textual foundations. The best foundation for the DCCD is rooted in the Framers' desire to prevent the political instability that resulted from economic rivalries among the states during the Confederation period. Further, Part IV proposes a set of decision rules implementing that proposition. Finally, in Part V, I apply the new decision rules to recent controversies involving the DCCD. A brief conclusion follows.


    Professor Mitchell Berman has argued that constitutional doctrine is created through a two-step process. (16) First, the reviewing court must establish constitutional meaning by adopting a "constitutional operative proposition[]." (17) In the next step, the court creates "constitutional decision rules (judicial statements of how courts should decide...

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