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The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause

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The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1986 The uprS eme Court and State Protectionism: Making Sense of the Dormant Commerce Clause Donald H. Regan University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/344 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Constitutional Law Commons, Courts Commons, Legislation Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons Recommended Citation Regan, Donald H. "The uS preme Court and State Protectionism: Making Sense of the Dormant Commerce Clause." Mich. L. Rev. 84 (1986): 1091-287. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE SUPREME COURT AND STATE PROTECTIONISM: MAKING SENSE OF THE DORMANT COMMERCE CLAUSE Donald H. Regan* for Eric Stein This essay was originally intended for the Michigan Law Review's recent Festschrift for Eric Stein. In the end, the essay was too long and too late. But even as a straggler, I wish to pay tribute to an admired and loved colleague. The Festschrift, marking Eric's retirement, appeared prematurely anyway. Eric has not retired, except in the myopic view of the bureaucrats, and shows no signs of doing so. TABLE OF CONTENTS I. INTRODUCTION ........................................ 1092 A. The Temporal Scope of the Thesis .................. 1093 B. What Is "Protectionism"? .......................... 1094 C. What Are "'Movement-of-Goods" Cases? How and Why Are They a Doctrinally Significant Class? ...... 1098 D. What Is "Balancing"? ............................. 1101 E. The Arguments Ahead, and the Connections Between Them ............................................. 1108 II. THEORY: WHAT THE COURT SHOULD Do ............. 1110 A. The Case Against Protectionism, and the Primacy of Purpose ........................................... 1110 B. In Praiseof Motive Review, ParticularlyUnder the Dormant Commerce Clause ........................ 1143 C. Against the Carolene Products Theory of the Dormant Commerce Clause and Open-Ended Private Interest Balancing ................................. 1160 D. Interlude: Variationson the Theme of Anti- Protectionism...................................... 1167 E. The Irrelevance of National Interest Balancing to Movement-of-Goods Cases .......................... 1174 * Professor of Law and Professor of Philosophy, University of Michigan. B.A. 1963, Harvard University; LL.B. 1966, University of Virginia; M.Phil. (Economics) 1968, Oxford Uni- versity; Ph.D. (Philosophy) 1980, University of Michigan. - Ed. I am grateful to Alex Aleinikoff, Vince Blasi, Terry Sandalow, and Fred Schauer for very helpful criticism of various drafts; also to the Guggenheim Foundation, which thought it was supporting something else. 1091 HeinOnline -- 84 Mich. L. Rev. 1091 1985-1986 1092 Michigan Law Review [Vol. 84:1091 F. NationalInterests in Transportation Cases, Taxation Cases, and Maybe Some Others..................... 1182 G. The State as Market Participantand Related M atters ................................... 1193 H. The Anti-Protectionism Principle and the Privileges and Immunities Clause ............................ 1202 III. PRACTICE: WHAT THE COURT Is DOING .............. 1206 A. The Leading Precedentsfor Balancing: Pike, Hunt, and Dean M ilk ................................... 1209 B. A Selection of Cases Upholding State Laws: Exxon, Clover Leaf, Breard, and Commonwealth Edison ... 1233 C. "Golden Oldies": Baldwin, Henneford, Eisenberg, H ood, et al ....................................... 1245 D. A Post-Pike Survey: Filling in the Gaps ............ 1268 E. Why Does the Court Not Preach What It Practices? ......................................... 1284 I. INTRODUCTION For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice.1 The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases (Pike v. Bruce Church, Inc.2 may be taken as paradigmatic), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is this what the Court has been doing, it is just what the Court should do. This and no more. In cases other than movement-of-goods cases - cases involving regulation of railroads or highways, cases about taxation - the Court has had certain limited goals over and above preventing protectionism. Indeed, in cases dealing specifically with regulation of the transporta- 1. E.g., Blasi, ConstitutionalLimitations on the Power of States to Regulate the Movement of Goods in Interstate Commerce, in I COURTS AND FREE MARKETS: PERSPECTIVES FROM THE UNIrED STATES AND EUROPE 174 (T. Sandalow & E. Stein eds. 1982); Brown, The Open Econ- omy: Justice Frankfurter and the Positionof the Judiciary, 67 YALE L.J. 219 (1957); Dowling, Interstate Commerce and State Power, 27 VA. L. REV. 1 (1940); Henkin, Infallibility UnderLaw: ConstitutionalBalancing, 78 COLUM. L. REV. 1022, 1037-41 (1978). 2. 397 U.S. 137 (1970). HeinOnline -- 84 Mich. L. Rev. 1092 1985-1986 May 1986] Dormant Commerce Clause 1093 tion system, the Court may even engage in a very particular balancing task. But in no area has the Court engaged in the sort of open-ended balancing the scholars have recommended. In this essay, I shall concentrate on the movement-of-goods area. The claim I am most concerned to establish is my claim that in this area the Court is concerned and should be concerned only with preventing purposeful protectionism. In fact, the discussion in Part III of what the Court is doing will be limited almost entirely to the movement-of-goods area. In Part II, where I discuss what the Court should be doing, it is again the movement-of-goods area that interests me most; but the argument establishing that, in this area, the Court should be concerned only with preventing protectionism will reveal quite naturally why certain other areas involve additional, but always 3 limited and specific, judicial tasks. A. The Temporal Scope of the Thesis That part of my thesis which is about what the Court is actually doing is meant to apply only to the modem era of dormant commerce clause jurisprudence. The modem era is defined by the abandonment 3. (A bibliographic note situating my claims in the literature.) In the last few years a number of scholars have argued that under the dormant commerce clause the courts should be concerned only with preventing discrimination by one state against other states or against interstate com- merce. Black, Perspectives on the American Common Market, in REGULATION, FEDERALISM, AND INTERSTATE COMMERCE 59 (A. Tarlock ed. 1981); Maltz, How Much Regulation Is Too Much - An Examination of Commerce Clause Jurisprudence, 50 GEO. WASH. L. REV. 47 (1981); Sedler, The Negative Commerce Clause as a Restriction on State Regulation and Taxation: An Analysis in Terms of ConstitutionalStructure, 31 WAYNE L. REv. 885 (1985); Smith, State DiscriminationsAgainst Interstate Commerce, 74 CALIF. L. REv. (forthcoming). Even the rele- vant chapter in G. GUNTHER, CONSTITUTIONAL LAW (I lth ed. 1985), has been reorganized to give the anti-discrimination theme greater prominence. None of these authors, to my mind, gives a really clear account of what "discrimination" means in the dormant commerce clause context. Aside from that, my own position goes well beyond the trend these articles represent in at least three respects: (1) in my view protectionism (or discrimination in the relevant sense) is primarily a matter of legislative purpose; (2) I claim that the Court has in fact recognized this implicitly, that bad purpose is what the Court has been attending to in the central line of cases; and (3) I attach much greater importance than other commentators do to the distinction between movement-of-goods cases and other sorts of cases. (Maltz sometimes appears to share my view about the theoretical importance of purpose, but he is not willing to be as definite about it as I am. Indeed, Maltz' article contains many insights, but it lacks an adequate theoretical structure.) There has been another significant recent development in dormant commerce clause scholar- ship: a spate of articles advancing what I call the "Carolene Products theory of the dormant commerce clause" (which others might call the process theory or the representation-reinforcing theory). I shall cite the main articles and discuss the theory (and why I reject it) in Part II.C. I mention this development here because it might occur to some readers that the Carolene Products theory also reflects a heightened concern with discrimination. That is true in a sense. But in fact the Carolene Products theory of the dormant commerce clause, even if it starts from an anti- discrimination premise of a sort, ends up being appealed to in support of balancing.
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