I know that, like most people, Dopers are fascinated with the issues surrounding the Dormant Commerce Clause, the concept that since the Constitution empowers Congress to regulate interstate commerce, we may infer a restriction prohibiting a state from passing legislation that unduly burdens interstate commerce even in the absence of specific Congressional action.
This week, SCOTUS handed down United Haulers v. Oneida-Herkimer Solid Waste Management Authority, a decision concerning the ability of states to regulate solid waste deposited in landfills if those ordinances favor in-state solid waste over solid waste hualed in from out of state.
What’s fascinating to me is the line-up. For all readers who believe that the Court’s justices march in ideological lock-step (or perhaps simply for all you readers who believe the Court’s traditionally conservative Justices march in ideological lock-step, while the liberal wing calmly and dispassionately analyzes the merits) – you might wish to take a look at the lineup in this 6-3 decision:
Majority opinion by CJ Roberts, joined by Souter, Ginsburg, and Breyer. Scalia concurs with a separate opinion. Thomas concurs with his own separate opinion. The majority opinion holds essentially that laws favoring local governments are permitted where laws favorig local businesses would not be. Scalia’s and Thomas’ concurrences reach the conclusion by questioning the validity of the Dormant Commerce Clause.
Dissenting opinion by Alito, joined by Stevens and Kennedy, says that there should be no distinction between local and out-of-state governments under the law.
For debate:
When will you see another 6-3 decision split along these lines?
Shouldn’t we just junk the Dormant Commerce Clause?
Sort of an aside, but Wikipedia has a neat little colorcoded chart to display who concurred/disents with various decisions over the year. Here’s 2006. It suggests (to me, anyways) that the breakdown of the court into a conservative and liberal block is a big oversimpification.
Don’t really have an opinion here, seems you could argue either way pretty convincingly. But just to make sure I’m reading the OP right, it appears that the majority of the SCOTUS awknowleges the existence of the clause with only Scalia and Thomas claiming otherwise, doesn’t it? The main difference of opinion is whether the clause extends to the actions of state governments, or just to businesses, not weather the clause itself is valid.
Not too often, that’s for sure (although most people forget that the Court decides most lower-profile, non-culture-wars cases unanimously or by lopsided majorities anyway).
I’m not a strong believer in state’s rights. I have a problem with the notion that we are still a collection of individual states, like Europe, with very different interests. The country is more homogeneous than most small countries. So trying to favor companies from your state and fearing the carpetbaggers from other states is absurd.
Ah Dormant Commerce Clause…
Its my Con Law final (which I just took on Tuesday) all over again.
Now Bricker,
I didn’t read the opinion but I can’t see how the majority could rule that local governments could favor in-staters over out-of-staters. (unless the state is participating in the market themselves) This seems to directly overrule Philadelphia v. NJ. What was the rationale the majority used?
As far as the split goes, it certainly is strange, but I can see how for issues that affect state’s economic rights there would be a similar split in the future. I would have thought that Alito would side with the majority, but without seeing his opinion, I’ll just have to assume he wanted to follow precedent. It makes sense that Stevens would be on the minority side, but I’m surprised about Kennedy, since he doesn’t seem to have any strong leanings on the right or left and more often than not, will just side with the majority.
And I do think the DCC still has value (or least I did before this opinion), if not any other reason than it will help foster national unity. When you have each state favoring their own business, interstate commerce will suffer and the whole of the economy will be affected.
