Professor James McGoldrick, “Why Does Justice Thomas Hate the Commerce Clause?” — Loyola Law Review, New Orleans (forthcoming)

June 5, 2019 | Professor James M. McGoldrick‘s article, “Why Does Justice Thomas Hate the Commerce Clause?” (SSRN) will be published in the Loyola Law Review, New Orleans (forthcoming, 2019). The article considers Supreme Court Justice Clarence Thomas’s rejection of the precedential value of the Dormant Commerce Clause cases in striking down state laws.

Abstract of “Why Does Justice Thomas Hate the Commerce Clause?”

This paper tries to answer the question why Justice Thomas hates the Commerce Clause as interpreted by the United States Supreme Court. First, the Commerce Clause is one of the most important grants of power to Congress in the Constitution. Thomas says that it is “Congress appropriating state police powers.” Second, the very grant of power to Congress imposes limits on the ability of state and local governments to regulate interstate commerce. This is called the Dormant Commerce Clause. Justice Thomas says that it “has no basis in the text of the Constitution, makes little sense” and is “virtually unworkable.” As to Congress’ commerce power, Congress has the ability to regulate anything “in commerce,” that is, anything crossing from one state to another state. This is the clearest form of federal power, regulating anything in commerce. Congress also has the ability to regulate local activities affecting interstate commerce, that is, activities totally within one state but affecting other states or the national interest. This second part of commerce power is most famously defined in NLRB v. Jones & Laughlin, “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” Since Justice Thomas’ primary problem is the “substantial effects” test that has been used at least since 1937 in Jones & Laughlin, that test is his primary concern. Given Thomas’ well-deserved reputation for being a textualist, he notes the obvious, “The Commerce Clause does not state that Congress may ‘regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.’” His principal objection seemed to be that the “substantial effects” test presented the danger of Congress having unlimited police powers, the kind of power that only states are supposed to have, the power to address any social issue without having to tie the law to some enumerated power. Such a federal police power, Justice Thomas seemed to say, was inconsistent with the states’ reserved powers under the Tenth Amendment. Nonetheless, the “wholesale abandonment” of recent decisions was not required, he said, even though he claimed his analysis revealed, “that our substantial effects test is far removed from both the Constitution and from our early case law.” He recognized that stare decisis might prevent the Court from starting with a clean slate, but that at some point, “I think we must modify our Commerce Clause jurisprudence.”
Although first recognized in dicta in 1824 in Gibbons v. Ogden, the modern approach to the Dormant Commerce Clause begins in 1851 with Cooley v. Board of Wardens. In Cooley, the Court reasoned that Congress’ power over interstate commerce was conclusive as to only those subjects of interstate commerce needing the uniformity of federal regulation. As to other subjects in interstate commerce that did not need the uniformity of regulation and might, in fact, need diversity of regulation, those subjects could be regulated concurrently by either the state or the federal government. In a 2018 opinion, the Supreme Court summarized its Dormant Commerce Clause rules,
“First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce. State laws that discriminate against interstate commerce face ‘a virtually per se rule of invalidity.’ State laws that ‘regulate even-handedly to effectuate a legitimate local public interest … will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’” In Justice Thomas’ dissenting opinion in Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me, he said that the Dormant Commerce Clause has“no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” Justice Thomas so hates the Dormant Commerce Clause that he had asserted in 2003 that it “cannot serve as a basis for striking down a state statute” and rejected the precedential value of the Dormant Commerce Clause cases in striking down state laws.
As for Commerce Power, this papers argues that of all the tests for defining Congress’ enumerated powers, attacking the “close and substantial test” hardly seems like the place to start. It is a test based upon the practical impact on interstate commerce. Whether any particular justice agrees with the outcome of the test, it suggests an approach with real limits on federal power, though perhaps not with the precision that Justice Thomas prefers. Although Justice Thomas does not reject the Commerce Power cases, he does rejects all of the Dormant Commerce Clause precedents and refuses to engage in future cases. He says that since its precedents are “unworkable” that they are “simply not entitled to the weight of stare decisis,” and that the doctrine “cannot serve as a basis for striking down a state statute.” Most of Thomas’ harshest criticism for the doctrine comes from the cases closest to the margins of the doctrine. The paper argues that the inconsistencies of the precedents are more than matched by the consistencies from Cooley to Jones & Laughlin to Gonzalez v. Raich. Even more important, the major problem with Thomas wholesale rejection of the Dormant Commerce Clause precedents in that he has removed himself as part of the solution.