Deep Dive Episode 128 – Can States Trump Interstate Commerce?

Asserting their sovereign interests or “states' rights,” many states are increasingly attempting to inject state officials’ policy preferences on national and global issues through state legislation or regulation on myriad subjects including energy, the environment, immigration, drugs, labor, health, food, and transportation. In what ways does the Interstate Commerce Clause, or the so-called Dormant Commerce Clause, limit the scope of the constitutionally legitimate spheres of these kinds of state legislation or regulation? In other words, what is the meaning of federalism in a constitutional system designed to facilitate interstate commerce? And, what is the proper judicial role, if any, in policing state laws that seek to interfere or have the effect of interfering with the free flow of commerce among the several states?
These questions are subject to considerable debate, with significant disagreement even within normally like-minded camps. Some conservatives and liberals alike think there is no such thing as an enforceable Dormant Commerce Clause. Others with various ideological priors view the Dormant Commerce Clause as invalidating only state laws that discriminate in favor of in-state activity over activities in other states. Another view posits that the Dormant Commerce Clause is broader than a non-discrimination principle and should be used to invalidate state laws that unduly burden or interfere with the flow of interstate commerce. And still others take views in between or beyond these positions.
Responding to Professor Donald Kochan’s recent essay in the Notre Dame Law Review Reflection, “The Meaning of Federalism in a System of Interstate Commerce: Free Trade Among the Several States”—an essay that emphasizes that commerce facilitation was a primary driver of the move from the Articles of Confederation to the Constitution—the panelists explore examples of current state laws and regulations that expand a state’s reach into national and international affairs, and they analyze and debate the different interpretations of the Constitution regarding the proper role of the judiciary in evaluating these laws.
Featuring:

Jonathan Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
Donald Kochan, Professor of Law and Deputy Executive Director, Law and Economics Center, Antonin Scalia Law School, George Mason University

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