Constitutional Law Class Notes 2/11/04



We’ll spend more than on the Dormant Commerce Clause than we previously planned.


Dormant Commerce Clause


Foley doesn’t exactly love it, but it’s there and we have to deal with it.  What is it?  “It’s the Commerce Clause that doesn’t really exist, but it has to.”


State laws can affect other states.  The drug companies say that Maine is setting up a burden on interstate commerce that affects out-of-state business.  The Constitution says that Congress has the power to regulate interstate commerce.  It doesn’t say that states don’t have that power.  It only gives power to Congress.


One of the justices says: “The Negative Commerce Clause is called that because it doesn’t exist.”  How do we get from the idea that Congress has the right to regulate interstate commerce to the idea that states don’t have the right to regulate interstate commerce?  If we add the Commerce Clause plus preemption, you get the Dormant Commerce Clause!  “You springboard off the preemption doctrine!”


What’s the relationship between the preemption doctrine and the Commerce Clause?  “We talked yesterday about implicit preemption.  One type is obstacle preemption.  If a state law preempts a federal purpose, the federal government has the right to preempt that law.  If a state law preempts interstate commerce, then the federal government has the right to preempt that law.”


The Dormant Commerce Clause is a form of implied preemption.  It all comes back to the same congressional power.  Congress is in the driver’s seat here.  It’s Congress’s power to regulate interstate commerce.  Congress does that by enacting laws.  When those laws expressly preempt state law, state law must give way because it is, by definition, interfering with Congress when Congress is using its Commerce Clause power.  There are a zillion ERISA preemption cases, for example.


With implied preemption, we look at implications of a particular statute.  In the present case, it’s the Medicaid law.  Does the Medicaid law suggest that the Maine Rx law has to disappear?  It doesn’t directly say so.


Maybe you could have implied preemption with multiple federal statutes.  Say Congress has enacted two or three laws on a subject.  Or Congress could have so many laws about one subject that the states may be understood to be unable to touch that subject.  That could be field preemption.


How could you have implied preemption without a federal statute on point?  The idea is that Congress wouldn’t want really bad interference with interstate commerce.  Congress wouldn’t want state laws that are protectionist in nature.  Congress fears economic Balkanization and a return to the turmoil of the Articles of Confederation.  We will presume that Congress wouldn’t want states to pass such laws even if Congress hasn’t said anything about it.  As a matter of policy, we want a “free trade” zone among the United States.  We’ll presume that Congress doesn’t want restrictions on that free trade unless and until Congress says otherwise.


Does that mean Congress is entitled to say to the Supreme Court that they shouldn’t have invalidated a particular state law under the Dormant Commerce Clause?  What if Congress goes really state-protectionisty?


On the Dormant Commerce Clause question in Maine Rx, the court was unanimous in saying that there was no Dormant Commerce Clause question.  But suppose they bought the drug companies’ argument and proclaimed the program to be an improper burden on out-of-state companies.  It would be the obligation of Congress to come back and say that they like Maine Rx.  They would have to come back and explicitly give Maine the authority to adopt this law even though the U.S. Supreme Court has ruled it unconstitutional on Dormant Commerce Clause grounds.  Can Congress overrule that kind of decision of the Supreme Court?


Congress could amend Medicaid and say: “NO MAINE RX!”  That would revise the Supreme Court decision.  But the opposite is also true.  If the dissent in the Maine Rx case had prevailed and the Court had affirmed the preliminary injunction, if Congress had not liked that, Congress could have overruled that judgment and said they didn’t like the fact that the court overruled implicit preemption, and then they can do it!


What’s the difference between overruling and relegislating?  If Congress doesn’t like what the Supreme Court says about its own product (Acts of Congress), then Congress can say: “You folks blew it!  We’ll amend and fix the Act!”


It also could be the case that the Supreme Court was correct in understanding what Congress originally had in mind when it first wrote the law, but when Congress subsequently understood the implication of its action, Congress may come back and say: “Yeah, that’s technically what we said, but we don’t like that result.  We’re changing our mind!”


The Dormant Commerce Clause is a form of preemption.  The same supremacy clause is at work in preemption as in the Dormant Commerce Clause.


Think back to Lopez and Morrison.  If Congress doesn’t like these cases, can Congress say they don’t like what the Supreme Court did and write new statutes to undo these cases?  NO.  They would have to amend the Constitution!!!


Can Congress undo a Dormant Commerce Clause decision?  Yes, because they have that power under the regular old Commerce Clause!  If the Supreme Court says there’s a violation of the Dormant Commerce Clause, then Congress can simply exercise its power and reverse the decision!  That’s because Congress is exercising its own power!


So is this a constitutional issue per se?  Notice that the Dormant Commerce Clause is unlike any other form of Constitutional Law!  These Dormant Commerce Clause decisions by the Supreme Court are revisable by acts of Congress!  They don’t need constitutional amendments!


So, don’t tell any federal judges this, but the Dormant Commerce Clause isn’t really Constitutional Law.  It’s not an interpretation of the Commerce Clause.  It’s an interpretation of a not-yet-existent act of Congress.  Congress can revise that interpretation just like it can revise preemption decisions or any other statutory interpretation.


If you have a case in which there is a state law and a federal law that are operating in the same domain, the first thing you have to ask is: Can Congress do this?  Is it within one of their enumerated powers?


Can there be a situation where a state law gets invalided under the Dormant Commerce Clause, but Congress couldn’t enact its own law because it would be outside of the scope of Lopez and Morrison?  No.  If you say that a state law violates the Dormant Commerce Clause, that necessarily means that Congress has the power to act in that area.


Congress can only preempt in areas where it has authority.


For tomorrow, we’ll read Chemerinsky on the Privileges and Immunities Clause of Art. 4, § 2 in relation to the “milk case”.  The key point is the notion of “revisability” which applies to the Dormant Commerce Clause does not apply to the Privileges and Immunities Clause.  Although the Dormant Commerce Clause deals with the subject of discrimination against people out of state, Congress has control.  The Privileges and Immunities Clause also deals with discrimination against people out of state.  It’s a slice of discrimination that Congress is not entitled to revise.  Conceptually, the Privileges and Immunities Clause works differently than the Dormant Commerce Clause even though the subject matter often overlaps.


Tomorrow, we will also look at the chart that I put way up at the top of this page.


When you’re out in the real world, always think about preemption and the Dormant Commerce Clause together.  Always ask yourself first, is there a federal statute operating in this territory?  It’s easier to bring a preemption claim than a Dormant Commerce Clause claim.  Even if I don’t have a federal statute on point that there’s implied preemption about, then I have the Dormant Commerce Clause in my “back pocket”.  Both doctrines can operate in the same case.  Tomorrow, we’ll analyze the specific Dormant Commerce Clause claim that the drug manufacturers brought and why it failed.


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