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.