#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  Seven of those states have since repealed those limitations.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?

#20: Obroccolicare

Broccoli Mandate

One of the more curious aspects of the Court’s decision in NFIB v. Sebelius (2012) is the fact that the opinions mention the word broccoli a dozen times. This so-called broccoli mandate captured the imagination of Obamacare’s critics in the time leading up to the Court’s decision in Sebelius. The analogy goes like this: if Congress can make you purchase health insurance, does this mean they can make you buy broccoli?”

The opinions in the case did not use the example frivolously; they really engage the problem set out by the conservative opponents to the Patient Protection and Affordable Care Act (or “Obamacare). Conservatives in the Senate laid the groundwork for the broccoli mandate in the Kagan confirmation hearings:


Justice Scalia posed the broccoli question to the Solicitor General during oral arguments in the case.

“Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

The broccoli mandate question is intended to help us think about the breadth of the Commerce Power. But does this work as an analogy to the government’s argument in Sebilius? What does the Court actually say about the government’s power to mandate insurance purchases under the commerce clause? Here is the majority opinion’s take:

Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem to “identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional” under its theory of the commerce power. To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables…. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, “[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.” But cars and broccoli are no more purchased for their “own sake” than health insurance. They are purchased to cover the need for transportation and food. (Chief Justice Roberts in Sebelius, excerpt courtesy of Professor Linder’s Exploring Constitutional Conflicts)

Justice Ginsberg responds in her concurrence:

As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.”…Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison….When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate…. (Justice Ginsburg in Sebelius, excerpt courtesy of Professor Linder’s Exploring Constitutional Conflicts)

What do you make of the use of this broccoli analogy debate? Does the Chief have a point here? Would it be more constitutionally defensible, as some have argued, if the government had mandated broccoli purchases? What impact does the Court’s decision in Sebelius have on the power of Congress to enact laws dealing with behaviors that impact citizen health (and, therefore, the cost of healthcare)?

A few additional thoughts:

  1. Did you know that there is a whole food freedom movement dedicated to protecting your right to eat whatever the heck you want?
  2. Certainly, a broccoli mandate never would have been signed into law by President H.W. Bush.

#19: Commerce and Race

Our readings in this part of the course deal primarily with the changing interpretation of the Commerce Clause over time. To read these sections of the book, it would be easy to forget that the Court’s decisions on these cases took place in the context of an evolving economic, social, and political environment. An interesting illustration of this phenomenon is the Court’s decisions in Heart of Atlanta Motel v. US, 379 US 241 (1964) and Katenbach v. McClung, 379 US 297 (1964). In these cases, the Court extended the reach of the Commerce Clause to include the power to demand the desegregation of private businesses. While the legal question at issue was the extent of Congress’s power under the Commerce Clause, the actual substance of that decision was about race relations in America. Essentially, the Court marshalled the power of the Commerce Clause to reach where the 14th Amendment could not–private businesses.

Read this short piece by Jack Balkin. Consider the position of the Commerce Clause litigation in the context of the nation’s (slowly) evolving race relations.

Paper Topic #19: Over time, has the Court approached Commerce Clause cases differently when they directly implicate matters of race relations?

Suggested Reading: Spaeth, H. J. (1965). Race Relations and the Warren CourtU. Det. LJ43, 255.

#18: Regime Politics

Today’s readings talk about the so-called “switch in time” that happened in 1937. It’s clear that the Court’s interpretation of the Commerce Clause–which was in stark contrast to the more expansive interpretation demanded by a variety of New Deal Programs–was a thorn in FDR’s side. His so-called “court packing plan” was framed as a solution to the high workload pressures facing the Court, but nobody ever believed this was FDR’s real purpose.

The public and members of Congress, who roundly supported FDRs other New Deal policies, reacted quite negatively to the proposal. But this isn’t why the plan was never implemented. As your textbook notes, the worst of the battle “was averted in large measure by the actions of the justices themselves” (Epstein and Walker 2014, 429).

The classic version of this story posits that Justices Roberts and Hughes changed their position on the constitutionality of many New Deal programs in direct reaction to the president’s threat to pack the Court. But why would justices–with their life tenure, guaranteed salary, and seeming independence from the political branches–bend to such pressure?

The classic version of the tale argues that it probably has something to do with protecting the legitimacy of the Court. Roosevelt’s court-packing plan was a transparent attempt to bully the Court into submission; it was clearly a shot at the Court’s independence from the political branches. Were the Court to suffer this humiliation, the ability of the Court to oppose the policy preferences of the dominant national governing coalition would be forever sabotaged.

Paper Topic #18: What explains the seeming “switch in time?” Was this just a continuation of an evolution of policy positions on the part of two of the justices that might have happened regardless of FDR’s court packing plan? Or was the switch a direct result of this pressure? In any event, did the switch make a difference in the public’s esteem of the Court (or of FDR, himself)?

Suggested Reading: Caldeira, G. A. (1987). “Public Opinion and the US Supreme Court: FDR’s Court-Packing Plan.” American Political Science Review81(4), 1139-1153.

#17: The Meaning of Commerce

Our Commerce Power readings trace the development of the Commerce Power over several important spans of time: 1) before the New Deal, 2) the New Deal era, 3) the Commerce Power heyday, and 4) the modern era where the Commerce Power is seemingly in decline. The readings are formatted this way because of the sheer volume of important jurisprudence to cover. It’s no surprise, really; the Commerce Power is among the most important and wide-ranging powers that Congress has. Its use of the Commerce Power has long been controversial.

A reasonable starting point for understanding of the Supreme Court’s rollercoaster relationship with the Commerce Clause is to determine what in the world this Clause meant when it was enacted. As you see in the readings for today, the Court has always shown an interest in making arguments about the original meaning and/or original intent of the Commerce Clause.

As you might imagine, fiscal conservatives today argue that the Commerce Clause was originally intended more as a call to facilitate trade (and keep states from mucking it all up) than to exercise regulatory power over it. Take, for example, this Heritage Foundation column:

“In its original meaning, the clause functioned primarily as a constraint upon state interference in interstate commerce.”

This is in contrast, of course, to the view of progressives, who argue that the Commerce Clause was always intended to create a strong regulatory role for Congress. Contrast the Heritage Foundation account with this taste of the account provided in this column from People for the American Way:

“It is clear that the Framers who met in Philadelphia wanted the new Constitution to establish a comprehensive national legislative power to rationalize the fraught field of interstate commerce.”

So, it’s clear that the results of an originalist analysis of the Commerce Clause is in the eye of the beholder.

Paper Topic #17: Given what we know about the history of the country under the Articles of Confederation and the interests and concerns of the folks who wrote the Commerce Clause, what is the most plausible original meaning of that Clause? Which camp is closest to the original meaning, the pre-New Dealers, the Commerce Clause expansionists, or the modern Republican Court?

Suggested Reading: Barnett, R.E. 2001. “The Original Meaning of the Commerce Clause.” U. Chi. L. Rev. 68(Winter):101.