ConfirmThem

Wow, that translation sounds familiar.

I have to be perfectly honest: I'm not particularly happy with either Roberts's or Alito's position in this case. Though each is clearly conservative, neither appears to be a clear textualist/originalist, which while not a fatal flaw, is disappointing to us constitutional purists.

What do you folks think? Am I overreacting?

The point that I find most interesting about these negative (or dormant) Commerce Clause cases is: what if Congress were to enact legislation specifically saying that it is approving protectionist state legislation? Is SCOTUS seriously suggesting that such federal legislation would be unconstitutional?

Given these questions, it's understandable that the opinions in this case would be all over the map. I would have much less problem with the majority decision if it would merely "presume" that Congress intends to ban protectionist state legislation. That way, Congress would be free to do as it pleases.

P.S. None of the opinions quoted Chief Justice John Marshall in the case of Willson v. The Black Bird Creek Marsh Company, 27 U.S. 245 (1829): "We do not think that the [state] act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."

P.P.S. I'll have to think this over some more. Justice Scalia once wrote: "The least plausible theoretical justification of all is the idea that in enforcing the negative Commerce Clause the Court is not applying a constitutional command at all, but is merely interpreting the will of Congress, whose silence in certain fields of interstate commerce (but not in others) is to be taken as a prohibition of regulation."

That translation is in honor of our former contributor, Feddie.

Roberts and Alito each claimed that his opinion in this case was more faithful to precedent. Neither took the opportunity to explicitly construe the actual Constitutional text relevant in this case (the Commerce Clause). So we can't really tell from this case whether they're originalists. Stare decisis got in the way.

Both of them have shown a tendency to think, contra Scalia and Thomas, that even if you've inherited a shaky framework of probably incorrect precedents, it's better to try to work within that framework, than to overrule the precedents. Remember Modesty and Stability?

But we can't really know whether Roberts and Alito would be willing to overturn bad (according to originalists) precedents if there were actually a majority available to do that. So far, they've declined to join Scalia and Thomas's broad opinions criticizing bad precedents: this case, Randall v. Sorrell, LULAC v. Perry, and Gonzales v. Carhart come to mind. As I've said before, I wonder what R & A would do if there were just one more conservative on the Court. Ah, if only...

It's difficult to criticize Roberts and Alito for perhaps not agreeing with Scalia and Thomas about the legitimacy of the "dormant commerce clause." After all, Thomas begins his opinion by acknowledging that he himself thought it was legitimate in the Carbone case (1994).

The Court has been saying that the Interstate Commerce power has a dormant component for a VERY long time. In Gibbons v. Ogden (1824), Chief Justice Marshall wrote for the Court that the interstate commerce power "can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant."

Obviously, the power in Article I, Section 8 to regulate interstate commerce cannot be completely the prerogative of Congress, or else the Constitution would not have also forbidden (in Article I, Section 10) states from taxing imports or exports without congressional approval.

However, Article I, Section 10 also suggests that discrimination in favor of a state’s own goods and services was meant to be something that only Congress could approve. To that extent, Chief Justice Marshall’s comments about a dormant commerce clause may be legitimate. Justice Thomas thought so, until today, so let’s not be too hard on Alito and Roberts about this.

Also, discrimination by states against out-of state goods and services may be legitimately forbidden by the Privileges and Immunities Clause in Article IV.