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Why the Privileges and Immunities Clause of Article Iv Cannot Replace the Dormant Commerce Clause Doctrine Brannon P

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Why the Privileges and Immunities Clause of Article Iv Cannot Replace the Dormant Commerce Clause Doctrine Brannon P University of Minnesota Law School Scholarship Repository Minnesota Law Review 2003 Why the Privileges and Immunities Clause of Article Iv Cannot Replace the Dormant Commerce Clause Doctrine Brannon P. Denning Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Denning, Brannon P., "Why the Privileges and Immunities Clause of Article Iv Cannot Replace the Dormant Commerce Clause Doctrine" (2003). Minnesota Law Review. 711. https://scholarship.law.umn.edu/mlr/711 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Essay Why the Privileges and Immunities Clause of Article IV Cannot Replace the Dormant Commerce Clause Doctrine Brannon P. Denningt A perennial object of judicial and academic brickbats,1 the t Associate Professor, Cumberland School of Law at Samford Univer- sity. This Essay was substantially completed while I was an Assistant Profes- sor at Southern Illinois University School of Law. Thanks are due to Jim Chen, Dan Farber, Pat Kelley, and Bob Pushaw for perceptive comments on a previous draft. Joel Goldstein's comments and criticisms encouraged me to sharpen several of the arguments made here; to him special thanks are due. Tiffany Ritchie, J.D. 2003, SIU School of Law, provided able research assis- tance. 1. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 610 (1997) (Thomas, J., dissenting) (arguing that the DCCD "makes little sense" and "has proved virtually unworkable in application" stemming in part from the fact that it "has no basis in the text of the Constitution"); Tyler Pipe Indus. v. Wash. State Dep't of Rev., 483 U.S. 232, 262 (1987) (Scalia, J., con- curring in part and dissenting in part) (arguing that the DCCD finds no sup- port in the Constitution's text, structure, or history); Michael DeBow, Codify- ing the Dormant Commerce Clause, 1995 PUB. INT. L. REV. 69, 73 ("The basic problem raised by the Dormant Commerce Clause is that it has no basis in the text of the Constitution."); Martin H. Redish & Shane V. Nugent, The Dor- mant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569, 571 ("Our position is that ... there is no dormant commerce clause to be found within the text or textual structure of the Constitution." (citation omitted)); Note, Functional Analysis, Subsidies, and the Dormant Commerce Clause, 110 HARV. L. REV. 1537, 1537 (1997) ("The lack of clarity in the Court's dormant commerce clause opinions largely results from the ab- sence of any 'clear theoretical underpinning,' the dormant commerce clause developed.., out of an ad hoc administrative concern that Congress would be unable to fend off states' efforts at protectionism without the courts' help." (ci- tations omitted) (quoting Tyler Pipe Indus., 483 U.S. at 262)); Amy M. Petrag- nani, Comment, The Dormant Commerce Clause: On Its Last Leg, 57 ALB. L. REV. 1215, 1216 (1994) (arguing that the doctrine is "absolutely without sup- port in the text of the Constitution or the intent of the Framers"). For a thoughtful discussion of the current criticisms of the DCCD, including those from Justices Scalia and Thomas, see 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-2 (3d ed. 2000). 384 2003] PRIVILEGES AND IMMUNITIES CLAUSE 385 dormant Commerce Clause doctrine (DCCD) 2 is also frequently the object of would-be reformers eager to reroute rivers of doc- trine to cleanse what many feel is constitutional law's equiva- lent of the Augean Stables.3 One popular solution-suggested in an oft-cited article by the late Professor Julian Eule4 and 2. The DCCD is the name given to the self-executing limitations inferred from the Commerce Clause and applied by courts to prohibit states from adopting legislation that discriminates against or impermissibly burdens in- terstate commerce. See generally BORIS I. BirrTKER, BITTKER ON THE REGULATION OF INTERSTATE AND FOREIGN COMMERCE §§ 6.01-6.08 (1999 & Supp. 2003) (discussing the development of the DCCD). The modern DCCD protects interstate commerce from discriminatory or protectionist taxation and regulation imposed by states. See S. Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 169 (1999) (observing that facially discriminatory taxes violate the Con- stitution absent certain justifications); Camps Newfound/ Owatonna, Inc., 520 U.S. at 595 (striking down a discriminatory tax exemption); Fulton Corp. v. Faulkner, 516 U.S. 325, 346-47 (1996) (invalidating discriminatory corporate tax); C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 385-95 (1994) (striking down regulations barring export of solid waste); Brown-Forman Distillers v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986) (striking down a price af- firmation statute requiring liquor to be sold in-state at prices no higher than those charged out-of-state); Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978) (holding that regulations embodying "simple economic protectionism" are "virtually per se invalid"). Nondiscriminatory state regulations can be in- validated if their burden on interstate commerce is "clearly excessive" when balanced against "the putative local benefits" conferred by the regulation. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). The DCCD has also been em- ployed to protect interstate commerce from state regulations that, if multi- plied, could result in an impermissible burden on that commerce, or that regu- late "extraterritorially," that is, beyond the boundaries of the legislating state. See Healy v. Beer Inst., 491 U.S. 324, 335-43 (1989); Edgar v. MITE Corp., 457 U.S. 624, 640-46 (1982); Kassel v. Consol. Freightways Corp., 450 U.S. 662, 671-75 (1981); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 527-30 (1959); S. Pac. Co. v. Arizona, 325 U.S. 761, 781-82 (1945). In addition to pro- tecting interstate commerce from discriminatory taxes, the DCCD also pre- vents states from imposing unapportioned taxes. See, e.g., Am. Trucking Ass'n v. Scheiner, 483 U.S. 266, 282 (1987) (invalidating unapportioned flat fees and axle taxes that produced discrimination against interstate commerce). More- over, in order to tax interstate commerce, the state must have a sufficient con- nection with the activity taxed, and the tax must be "fairly related" to state benefits provided to the taxpayer. See, e.g., Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 287 (1977) (upholding a privilege tax on gross receipts as applied to a corporation in the business of transporting automobiles from Jackson, Mississippi, to in-state car dealerships). 3. See, e.g., Camps Newfound/Owatonna, Inc., 520 U.S. at 610 (Thomas, J., dissenting) (describing the DCCD as a "morass"); W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring) (describing the DCCD as a "quagmire"); Tyler Pipe Indus., 483 U.S. at 260 (Scalia, J., concur- ring in part and dissenting in part) (arguing that the application of the DCCD "makes no sense"); Kassel, 450 U.S. at 706 (Rehnquist, J., dissenting) (arguing that the DCCD is "hopelessly confused"). 4. Julian Eule, Laying the Dormant Commerce Clause to Rest, 91 YALE MINNESOTA LAW REVIEW [Vol 88:384 once offered by no less a judicial Hercules than Justice Scalia 5 -is to abandon the DCCD altogether and combat dis- crimination against interstate commerce by relying solely on the Privileges and Immunities Clause of Article IV, Section 2.6 L.J. 425, 446-47 (1982) ("If we are willing to redirect judicial energies from preserving commerce to protecting process, the express commands of the 'privileges and immunities clause' of Article IV of the Constitution seem a more appropriate foundation from which to launch such an effort than the si- lences of Article I." (citation omitted)); see also Charles L. Black, Jr., Perspec- tives on the American Common Market, in REGULATION, FEDERALISM, AND INTERSTATE COMMERCE 59, 65 (A. Dan Tarlock ed., 1981) ("It might.., be that [enforcement of an antidiscrimination principle in interstate commerce] should find its doctrinal base in the Privileges and Immunities Clause of Arti- cle IV, rather than in the negative inference from the Commerce Clause."); Karl Manheim, New-Age Federalism and the Market ParticipantDoctrine, 22 ARIZ. ST. L.J. 559, 623 (1990) ("State action which discriminates against out- of-state commerce should still be prohibited, perhaps under the force of article IV's privileges and immunities clause."). 5. Tyler Pipe Indus., 483 U.S. at 264 (Scalia, J., concurring in part and dissenting in part) (stating that "rank discrimination against citizens of other States" is not regulated by the Commerce Clause, but by the Privileges and Immunities Clause of Article IV). 6. U.S. CONST. art. IV, § 2, cl. 1 ("The Citizens of each State shall be en- titled to all Privileges and Immunities of Citizens in the several States."). Another candidate for combating state discrimination is the Equal Protec- tion Clause of the Fourteenth Amendment. At least once, the Court struck down a discriminatory state regulation of insurance on equal protection grounds. See Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 883 (1985) (concluding that taxation of out-of-state corporations to protect domestic industry was not a legitimate state purpose). Since the regulation concerned the insurance in- dustry, the DCCD was unavailable, because the McCarran-Ferguson Act, 15 U.S.C. § 1011, permits state regulation of insurance that would otherwise be prohibited by the DCCD. Moreover, since the appellant was a corporation, the Privileges and Immunities Clause of Article IV was similarly unavailable, because the Clause has long been interpreted to exclude corporations from its protections.
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