January 2012

Once again, Justices Roberts and Alito have split over whether federal law preempts a state regulation. In United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, Chief Justice Roberts issued a decision in favor of a local government’s taking over waste disposal from out-of-state businesses against a dormant Commerce Clause challenge, while Justice Alito wrote a dissent urging that it be struck down.

The Constitution’s dormant Commerce Clause prohibits regulations that discriminate against, or are unduly burdensome to, interstate commerce. In its absence, a business engaged in interstate commerce could be subjected to a suffocating patchwork of regulations imposed by dozens of distant states and hundreds of obscure municipal governments.

In the United Haulers case, Justice Alito took a broad view of the dormant Commerce Clause, while Chief Justice Roberts took a narrower view. The fact that Alito voted in favor of business in this case and Roberts voted against it is ironic, because the Chamber of Commerce and the business community were very enthusiastic about Judge Roberts when he was nominated to the Supreme Court, and more tepid in their support of Judge Alito. But Alito’s rulings on the Court have been more favorable for business than Roberts.

The court’s ideological outlier justices (Thomas and Scalia on the right, and Ginsburg on the left) don’t like the dormant commerce clause much at all, viewing court enforcement of it as judicial activism.

Justices Scalia and Thomas claim that the dormant Commerce Clause has no basis in the Constitution, and that the founding fathers didn’t intend to allow judges to use it to interfere with states’ rights to regulate.

They are wrong. The Founding Fathers didn’t fetishize states. In fact, they were so distrustful of state regulators that they applied a uniform, judge-made, federal common law, the Law Merchant, to contract disputes between citizens of different states, rather than using the law of the state in which the contract arose. Doing that prevented states from interpreting their own law in ways that might disadvantage out-of-state businesses. (That practice, recognized by a unanimous Supreme Court in Swift v. Tyson, 41 U.S. 1 (1842), was followed for about a century before being overruled during the New Deal in Erie Railroad v. Tompkins (1938)).

Enforcing the dormant commerce clause, which Justice Scalia and Thomas object to, is a far more modest intrusion on state prerogatives than the Founding Fathers’ longstanding practice of applying federal common law to local disputes.

The founding fathers were pro-free-trade, not a bunch of states’-rights worshippers. The United States was intended to be a big internal free trade zone.

Scalia’s and Thomas’s reading of the Framers’ purported original intent about state regulation of interstate commerce is simply wrong. Their interpretation is rooted in 20th century misinterpretations of what federalism meant to the Founding Fathers, rather than the founders’ actual intent.