{"id":7634,"date":"2017-01-13T15:59:32","date_gmt":"2017-01-13T21:59:32","guid":{"rendered":"http:\/\/huewhite.com\/umb\/?p=7634"},"modified":"2017-01-13T15:59:32","modified_gmt":"2017-01-13T21:59:32","slug":"non-existent-dormant-clauses","status":"publish","type":"post","link":"https:\/\/huewhite.com\/umb\/2017\/01\/13\/non-existent-dormant-clauses\/","title":{"rendered":"Non-Existent Dormant Clauses"},"content":{"rendered":"

On SCOTUSblog<\/strong><\/em>, Eric Citron writes<\/a> about potential SCOTUS<\/strong><\/em> 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:<\/p>\n

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 \u201cdormant commerce clause.\u201d 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 \u2014 as its name suggests \u2014 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<\/a><\/em>, Scalia \u00a0stated: \u201cThe fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.\u201d Although a court of appeals judge lacks the same freedom to disparage and\/or depart from existing Supreme Court precedent, Gorsuch\u2019s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause.<\/p>\n

For example, a 2015 10th Circuit decision written by Gorsuch, Energy and Environment Legal Institute v. Epel<\/a>,<\/em> 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\u2019s \u201cjudicial free trade policy\u201d even under existing precedent. But while acknowledging that lower courts must take the Supreme Court\u2019s doctrine as they find it, Gorsuch\u2019s opinion shows respect for the doctrine\u2019s \u201c[d]etractors,\u201d like Scalia, who \u201cfind dormant commerce doctrine absent from the Constitution\u2019s text and incompatible with its structure.\u201d Though Gorsuch\u2019s 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 \u2014 the doctrine also doesn\u2019t make much sense. That same instinct is present in a prominent concurrence last year in Direct Marketing Association v. Brohl<\/a><\/em>, in which Gorsuch singled out one aspect of dormant commerce clause doctrine\u2014the Quill <\/em>rule that exempts out-of-state mail order sales from state sales tax\u2014as an \u201canalytical oddity\u201d that \u201cseems deliberately designed\u201d to be overruled eventually. This opinion aligned him with Justice Anthony Kennedy (who has called for overruling Quill<\/em>), and again with Scalia, who identified Quill <\/em>as part of the \u201cbestiary of ad hoc tests and ad hoc exceptions that we apply nowadays\u201d under the dormant commerce clause.<\/p><\/blockquote>\n

Two things stand out. First, presumably Judge Gorsuch is a conservative, even highly conservative, but note that here he used his interpretation to preserve<\/em> 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.<\/p>\n

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.<\/p>\n

On this subject, Eric draws a conclusion:<\/p>\n

The dormant commerce clause isn\u2019t a particularly hot-button issue, nor does it have obvious liberal\/conservative fault lines. But it\u2019s noteworthy that criticism of the dormant commerce clause is of a piece with criticism of the \u201cright to privacy\u201d that undergirds the Supreme Court \u2018s abortion jurisprudence, as well as other judge-made doctrines that do not have a strong connection to the constitutional text. Again, Gorsuch\u2019s 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.<\/p><\/blockquote>\n

Perhaps alarming to those of us who discover that, without such readings, justice is not so warm and fuzzy.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u2026 Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-7634","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/7634","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/comments?post=7634"}],"version-history":[{"count":1,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/7634\/revisions"}],"predecessor-version":[{"id":7635,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/7634\/revisions\/7635"}],"wp:attachment":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/media?parent=7634"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/categories?post=7634"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/tags?post=7634"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}