Conservative Justices, Be Careful What You Wish For

(Bloomberg Opinion) -- Because the Supreme Court ruling last week that gave states more power to tax internet sales was quite technical, its momentousness was easy to miss. Reporters treated it, accurately, as a case about whether a company had to have a physical presence in a jurisdiction for it to have a duty to collect taxes there. But the case, South Dakota v. Wayfair, came out the way it did because two justices used it to reconsider a crucial legal doctrine that goes back almost as far as the U.S.

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Clarence Thomas and Neil Gorsuch, arguably the two most conservative justices and certainly the two most devoted to a jurisprudence based on the original meaning of the Constitution, have previously questioned what has been called the “dormant” or “negative” commerce clause. The Constitution grants Congress the power to regulate commerce among the states. Since at least 1872, the Supreme Court has held that state governments therefore cannot regulate interstate commerce. (Chief Justice John Marshall had suggested as much even earlier, in 1829.) Thomas and Gorsuch have argued — as the late conservative justice Antonin Scalia also contended — that this interpretation is a judicial invention that is not rooted in the Constitution.

For Thomas and Gorsuch, this view was a key reason to interpret states’ taxing powers broadly in Wayfair. These conservative justices called on hoary conservative themes: textualism and the defense of states’ rights. If the Constitution does not explicitly deny states a power, then why not let them have it? Perhaps, the thought runs, Congress can pass laws to limit the states’ power over commerce, but if it does not, why should the courts intervene?

The Supreme Court as a whole has not adopted the Thomas/Gorsuch view. The other justices in the 5-to-4 Wayfair majority ruled in favor of state taxing authority on other grounds.

It would be regrettable if the two justices are able to persuade conservative colleagues to weaken the dormant commerce clause over time. The dormant commerce clause isn’t in the text of the Constitution, it’s true. But neither is the idea that the federal government cannot commandeer state governments, and Thomas and Gorsuch have been willing to insist on that principle as an inference from the text, structure and logic of the Constitution. For that matter, judicial review itself is the same kind of inference rather than an explicit textual commitment.

A bias in favor of the states, especially when it comes to interstate commerce, is also misguided. Skepticism of the states — their short-sightedness, their rapacity — in commercial matters pervades the Federalist Papers.

Congress cannot pass laws with enough explicit provisions to keep grasping state governments from finding creative ways to extract rents from interstate commerce. If the courts cannot stop state schemes to carve up the nation’s commerce for their own advantage without clear congressional authorization, we will end up with an inversion of the Constitution’s order: Interstate commerce will become a regulatory free-for-all in which the states rather than the national government have primary authority.

Something like that train of thought has motivated nearly every Supreme Court in U.S. history to enforce a dormant commerce clause. It is not a recent invention of judicial activists seeking to read their ideology into the Constitution. It’s a rule necessary for making the Constitution work. It would be ironic if legal conservatives were to make U.S. law less friendly to markets than the Founders wanted. If these conservatives rethink their position, it’s an avoidable irony.

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