#21: Dormant Commerce

The Dormant Commerce Clause Maze

There has been a great deal of debate about whether the Founders intended that the Commerce Clause be read to include a restriction on the right of states to engage in certain regulation of commerce. This interpretation of the Commerce Clause is called the “dormant” or “negative” Commerce Clause. The application of the Dormant Commerce Clause was one of the main questions in a recent case, McBurney v. Young (2013).

As SCOTUSblog’s Lyle Dennison explains,

Under the Commerce Clause, Congress has broad authority to pass laws regulating trade and commerce among the states, but the courts have found “dormant” within that Clause a ban on states’ discrimination against interstate commercial activity by treating its own residents more favorably than outsiders.

At the center of the new case before the Court are state “freedom of information” (FOI) or “open records” laws.   At one time, at least ten states had FOI laws that restricted access to their agencies’ public records to citizens of their own state.  Seven of those states have since repealed those limitations.  Now, according to critics of such laws, only the states of Arkansas, Tennessee, and Virginia continue to enforce their laws.  Virginia’s law is the one at issue in McBurney v. Young, now before the Court.

“Under the Virginia Freedom of Information Act, which dates from 1968, the right to inspect and copy public records is limited to “any citizens of the Commonwealth.”   At one time, citizens seeking access had to show a “personal or legal interest” in the records, but that was taken out of the law in 1974.  Newspapers and magazines that circulate in the state and radio and TV stations located in the state or broadcasting into it from elsewhere are also assured of access.   The state law only applies, the state has argued, to non-judicial records; court records are open to all, including real estate titles, tax files, and court judgment files.   As is true of many open-records laws, the Virginia law requires those seeking access to pay fees to cover the actual cost of search and copying.” (Lyle Dennison’s Argument Preview: How Open are Public Records?”)

Listen to this wrap-up of the Court’s decision in the case. Post-Decision SCOTUScast–McBurney v. Young.

What should we make of this dormant Commerce Clause? Justice Thomas, a longtime critic of the idea, wrote a very short concurring opinion in which he argued against such a thing:

“I join the Court’s opinion. Though the Court has properly applied our dormant Commerce Clause precedents, I continue to adhere to my view that ‘[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.'”(Thomas concurring in McBurney).

Does the Commerce Clause imply a limitation on state regulation of commerce, as something separate from federal preemption? What is the state of the argument today?

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