Sixth Topic: The Negative or Dormant Commerce Clause 


“The grant [of one of the Constitution’s enumerated powers] does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189, 6 L.Ed. 23 (1824)(Emphasis added.)


Chief Justice Marshall’s reference to the “dormancy” of federal powers in this quote foreshadows what has become one of the most effective tools of federal supremacy over state and local policy making: the so-called Dormant or Negative Commerce Clause. On its face, the Commerce Clause makes no reference to any regulatory authority of the states, but as the doctrine of the Dormant Commerce Clause developed, especially since the 1930s, it has become one of the principal restraints on state regulatory power in our modern, integrated national economy.


A Dormant Commerce Clause issue is presented when a state directly or incidentally regulates an activity that (1) could be regulated by Congress under its Commerce Clause authority but (2) has not been regulated by Congress. Since Congress has not regulated the activity by legislation based on its Commerce Clause authority, the clause (or the potential authority of Congress under the clause) is said to be dormant. This dormant power is also sometimes referred to as the negative commerce power or Negative Commerce Clause. The question is whether, in the absence of a conflicting federal law, the state law is constitutional. In a great number of such cases, the state laws are stricken down as unconstitutional.


The state laws in these cases are often laws that are not intended primarily to regulate interstate commerce, but are intended to exercise the states “police powers”—the states’ authority to provide for the health, safety, welfare, and morals of their citizens. Thus, a state law that requires drivers to wear seatbelts, while clearly intended as a safety measure, will incidentally affect interstate commerce because some of the drivers in the state at any given time are from out of state or are heading out of state. Thus, the state regulation necessarily affects or “burdens” interstate commerce and, perhaps, violates the Dormant Commerce Clause. (Any state government activity that affects interstate commerce is said to “burden” interstate commerce. Some burdens are acceptable; some are “undue burdens” and are unacceptable. State tax laws on income derived from out-of-state, or on businesses headquartered in other states but doing business in-state, also affect interstate commerce and may run afoul of the Dormant Commerce Clause.)


The Dormant Commerce Clause doctrine can be seen as another aspect of the exclusivity issue that we discussed in the last lecture. If the authority to regulate commerce “with foreign Nations, and among the several States, and with the Indian tribes” is exclusively the federal government’s, then even if the federal authority has not been exercised and remains dormant, the states would be precluded from regulating such commerce. Justice William Johnson’s concurring opinion in Gibbons provides a fuller rationale for exclusivity—and dormancy—than any other judicial opinion in these early cases.

Please read Marshall’s opinion in Willson v. Black-Bird Creek Marsh, Co. (1829) and Justice Curtis’s opinion in Cooley v. Board of Wardens (1852), a decision from the Court headed by Chief Justice Roger Taney, who succeeded Marshall as Chief Justice. In Willson, is there any reference to the exclusivity issue? What is the test or rule that the Court applied to the question of whether the state law authorizing the dam was constitutional or not? In Cooley, there is a state law and also a federal law at issue: are they in conflict? Are they both valid? Is neither one of them valid? Is only one of them valid? In determining what aspects of interstate and international commerce states may validly regulate, what rule or principle does the Court apply? Is there any reference to the exclusivity issue? What widely different approaches do Justice McLean and Justice Daniel apply to the problem?



© William S Miller