On SCOTUSblog, Eric Citron writes about potential SCOTUS nominee Neil Gorsuch, currently on the United States Court of Appeals for the 10th Circuit. While I have no opinion of Judge Gorsuch, I found this passage concerning his views of the “dormant commerce clause” interesting – if only because I had not heard of such a concept:
Another area of the law in which Gorsuch has shown both his writing talent and his similarity to Scalia is in the application (and critique) of doctrines surrounding the so-called “dormant commerce clause.” These doctrines treat the commerce clause not only as a grant of power to Congress to make laws regulating interstate commerce, but as a kind of presumptive limitation on the power of states to make laws that either unduly burden or unfairly discriminate against interstate commerce, without regard to whether Congress has ever passed a law in the relevant area. Because — as its name suggests — the dormant commerce clause cannot actually be found in the text of the Constitution, Scalia eventually came around to the view that it should not be a thing, and refused to endorse any future expansions of the doctrine. For example, in 2015, in a dissenting opinion in Comptroller v. Wynne, Scalia stated: “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.” Although a court of appeals judge lacks the same freedom to disparage and/or depart from existing Supreme Court precedent, Gorsuch’s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause.
For example, a 2015 10th Circuit decision written by Gorsuch, Energy and Environment Legal Institute v. Epel, declined to apply the dormant commerce clause to strike down a clean-energy program created by Colorado on the grounds that it might negatively affect traditional energy producers outside the state. The opinion explains that this result is consistent with the limited reach of the dormant commerce clause’s “judicial free trade policy” even under existing precedent. But while acknowledging that lower courts must take the Supreme Court’s doctrine as they find it, Gorsuch’s opinion shows respect for the doctrine’s “[d]etractors,” like Scalia, who “find dormant commerce doctrine absent from the Constitution’s text and incompatible with its structure.” Though Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense. That same instinct is present in a prominent concurrence last year in Direct Marketing Association v. Brohl, in which Gorsuch singled out one aspect of dormant commerce clause doctrine—the Quill rule that exempts out-of-state mail order sales from state sales tax—as an “analytical oddity” that “seems deliberately designed” to be overruled eventually. This opinion aligned him with Justice Anthony Kennedy (who has called for overruling Quill), and again with Scalia, who identified Quill as part of the “bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays” under the dormant commerce clause.
Two things stand out. First, presumably Judge Gorsuch is a conservative, even highly conservative, but note that here he used his interpretation to preserve a clean energy program run by the State of Colorado, a position of several questions for conservatives. It suggests an allegiance to the law and his interpretation to it, but not necessarily ideology. At least, it might appear that in terms of priorities, he’s more likely to follow his methodology for interpretation of the law than whatever far-right conservative ideology may be calling for.
Second, simply the existence of exceptions for out of state mail order sales from state sales tax. Replace “mail order” with “Internet retailer” and they seem interchangeable.
On this subject, Eric draws a conclusion:
The dormant commerce clause isn’t a particularly hot-button issue, nor does it have obvious liberal/conservative fault lines. But it’s noteworthy that criticism of the dormant commerce clause is of a piece with criticism of the “right to privacy” that undergirds the Supreme Court ‘s abortion jurisprudence, as well as other judge-made doctrines that do not have a strong connection to the constitutional text. Again, Gorsuch’s opinions seem to follow the lead of textualists and federalists like Scalia in expressing great skepticism towards such doctrines, which allow judges to strike down duly enacted local laws on the basis of vague principles that cannot be found in the concrete text of the national charter.
Perhaps alarming to those of us who discover that, without such readings, justice is not so warm and fuzzy.
