The Dormant Commerce Clause (Part I)

Most of us have heard of the commerce clause: Article 1, Section 8, clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But what is the Dormant Commerce Clause? It is the negative commerce clause where the Court has given themselves the power of jurisdiction over cases involving State restrictions or burdens over interstate commerce even in the absence of a conflict between federal statutes. In this article, many of the Dormant Commerce Clause cases in U.S. history are revealed and how this judiciary theory has further increased the size, scope, and power of the Federal government over the States.

Brown v. Maryland (1827): The Court held that a Maryland statute requiring importers of foreign goods had to purchase a license to sell those goods violated the commerce clause. Since, importers of goods from other states did not face the same burdens, this ruling was correct because it unfairly violated the liberties of Maryland importers.

Wilson v. Blackbird Creek Company (1829): The Court ruled that the state construction of a damn did not violate the commerce clause even though it may actually interfere with commerce at some point in the future. Chief Justice John Marshall first used the term “Dormant Commerce Clause” when writing the majority opinion for this case in what I believe to mean slowing down, interfering, or slightly delaying commerce activity, not stopping it. The Marshall Court applied the commerce clause properly to the states: State police power trumped federal police power unless it violated the liberties of individuals.

Coley v. Board of Wardens (1852): The Court upheld a Pennsylvania statute requiring all ships entering Philadelphia harbor to hire a local pilot did not violate the commerce clause. This was obviously intended as a safety requirement to protect life, liberty, and property of individuals using the harbor and it was not meant to delay commerce.

Wabash, St. Louis, and Pacific Railway Company v. Illinois (1886): This was a significant case because it severely limited state rights under the commerce clause. It was the first instance where the court allowed the federal government to intrude on state activities over economic issues. What’s worse, the result of the Wabash decision led to the introduction of the first regulatory agency in the federal government: The Interstate Commerce Commission.

Swift Company v United States (1905): The Court held that the federal government can regulate monopolies. This allowed Teddy Roosevelt to assault the “Beef Trust” for price fixing. Congress followed with the Pure Food and Drug Act and the Meat Inspection Act of 1906. This was the beginning of unlimited Federal authority over all economic issues via the commerce clause.

George W. Bush and Sons v. Malloy (1925): The Court held a Maryland law requiring business carriers within the state to purchase licenses or certificates to engage in commerce illegal. This ruling was similar to Brown v. Maryland one hundred years earlier.

Edward v. California (1941): The Court struck down California’s “indigent person” law as unconstitutional in violation of commerce clause because it denies certain person’s from other states the right to move to California. This is a sound decision because it protects individual liberty.

Southern Pacific Company v. Arizona (1945): The Court held an Arizona law placing railway car limits on passenger and freight trains for safety purpose unconstitutional. Justices Black and Douglas dissented arguing the difference between “discrimination and burdens placed on interstate commerce.” States should be allowed to enact laws to protect the safety and health of its citizens without government intrusion because they view it as either a “burden or that the law discriminates”.

Dean Milk v. Madison (1951): The Court held that a municipal law requiring all milk sold in Madison Wisconsin to be pasteurized at an approved plant within 5 miles of the city violated the commerce clause. Once again, this law was enacted to protect the safety and health of Madison residents.

Miller Brothers v. Maryland (1954): The Court ruled that an out of state business was not responsible for collecting a “use tax” from Maryland citizens who purchased product from an out of state vendor. Since Maryland residents went directly to Delaware to buy the products, Miller Brothers had no “contact” with Maryland. However, the Court ruled that Maryland citizens were responsible for the tax.

Bibb v. Navajo Freight Lines (1959): The Court held that an Illinois law requiring trucks to have curved mudguards instead of straight ones for safety purposes violated the commerce clause. This may be the most ridiculous abridgement of federal power since this statute did nothing to mitigate commerce. The law was enacted merely for safety and health purposes.

Florida Avocado Growers v. Paul (1963): The Court held that a California law imposing fat standards on Avocados did not violate the commerce clause or the equal protection clause.

National Bellas Hess v. Illinois (1967): The Court held that the commerce clause prohibits one state from levying a use or sales tax on out of state businesses who have minimal contact with the state: such as with orders filled through the mail only. This ruling was consistent with the 1954 Miller Brothers case.

Pike v. Church (1970): The Court struck down an Arizona law requiring Cantaloupe growers from placing the state symbol on packaging. The Court ruled it was too high a cost burden to ask growers to adhere to the law. Church did, however, ship his Cantaloupe to California to be packaged. The Court was probably right that the law infringed on Church’s liberties, but it had very little to do with limiting commerce.