Constitutional
Law Class Notes
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
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
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
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.