Does Natl. Pork v. Ross signal the death of the Dormant Commerce Clause?
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  Does Natl. Pork v. Ross signal the death of the Dormant Commerce Clause?
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Author Topic: Does Natl. Pork v. Ross signal the death of the Dormant Commerce Clause?  (Read 602 times)
Adam_Trask
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« on: July 11, 2023, 09:43:44 AM »

I know at least Thomas wants the Dormant Commerce Clause to die. What do you, gentle posters, think National Pork Producers suggests about the future of the Dormant Commerce Clause?
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Skill and Chance
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« Reply #1 on: July 11, 2023, 10:24:04 AM »

There are 2 clear conservative votes against it, 3 clear conservative votes to maintain it, and Barrett at the very least is open to narrowing it, so the outcome of dormant commerce clause cases will be decided by the liberal justices for the foreseeable future.  On the liberal side, I was a little surprised that KBJ came down in favor of a strong dormant commerce clause while Kagan wanted to narrow it.
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Adam_Trask
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« Reply #2 on: July 11, 2023, 01:02:51 PM »

There are 2 clear conservative votes against it, 3 clear conservative votes to maintain it, and Barrett at the very least is open to narrowing it, so the outcome of dormant commerce clause cases will be decided by the liberal justices for the foreseeable future.  On the liberal side, I was a little surprised that KBJ came down in favor of a strong dormant commerce clause while Kagan wanted to narrow it.

I suspect that Kagan was mostly motivated by a preference for upholding laws aimed at addressing climate change whereas KBJ's position was motivated by broader constitutional principles. I think I agree with KBJ's position. And as I may have suggested before, I'm skeptical of a narrower interpretation of the D.C.C. and fear it's demise (especially given the political gridlock in the F. Gov and single-party control of many states).

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Skill and Chance
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« Reply #3 on: July 11, 2023, 01:15:05 PM »

There are 2 clear conservative votes against it, 3 clear conservative votes to maintain it, and Barrett at the very least is open to narrowing it, so the outcome of dormant commerce clause cases will be decided by the liberal justices for the foreseeable future.  On the liberal side, I was a little surprised that KBJ came down in favor of a strong dormant commerce clause while Kagan wanted to narrow it.

I suspect that Kagan was mostly motivated by a preference for upholding laws aimed at addressing climate change whereas KBJ's position was motivated by broader constitutional principles. I think I agree with KBJ's position. And as I may have suggested before, I'm skeptical of a narrower interpretation of the D.C.C. and fear it's demise (especially given the political gridlock in the F. Gov and single-party control of many states).



This really surprises me from a left-leaning perspective.

1. It should clearly move social policy to the left compared to the status quo.  GDP generation skews heavily in favor of urban areas, so it's essentially the reverse of the Senate bias.  Companies can essentially be compelled to abide by a left-leaning code of ethics if they want to do business on the West Coast or in the Northeast.  Meanwhile, the only red states in the country with large enough markets to impose conservative ethics codes without companies just ignoring them are Florida and Texas.

2. It's more small-d democratic to have more decisions being made by governors elected by popular vote and state senates with equal population districts than through the federal system.



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Adam_Trask
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« Reply #4 on: July 11, 2023, 03:32:17 PM »

This really surprises me from a left-leaning perspective.

1. It should clearly move social policy to the left compared to the status quo.  GDP generation skews heavily in favor of urban areas, so it's essentially the reverse of the Senate bias.  Companies can essentially be compelled to abide by a left-leaning code of ethics if they want to do business on the West Coast or in the Northeast.  Meanwhile, the only red states in the country with large enough markets to impose conservative ethics codes without companies just ignoring them are Florida and Texas.

2. It's more small-d democratic to have more decisions being made by governors elected by popular vote and state senates with equal population districts than through the federal system.




I think I can defend it from a left-perspective (more specifically a democratic socialist perspective), but I'll leave you to judge whether I'm just a bundle of contradictions. And I do think my reasoning basically follows from one axiom: that we all live in an integrated national market and that almost any regulation will have national effects. And it follows that when states regulate the economy, they tend to impose the greatest costs on out-of-state interests (because those out-of-state interests aren't represented in the political process). 

1. I don't think we should underestimate the power of Texas and Florida (and perhaps North Carolina and Georgia). These states seem particularly keen on using the power of the State to impose their own economic and socio-economic policies on the rest of the country. Blue states on the west coast and the northeast may be in a position to skew some things to the left, but as it stands now, they're much more sheepish. Despite this essential difference in the character of red v. blue states, I'm very concerned about what happens when these opposing states pass laws that are diametrically opposed to each other. From my perspective, this kind of impasse seems imminent in a number of areas, and it isn't going to solve any of the pressing problems our country faces that requires a government response. And if we don't have a strong D.C.C., resolving these disputes will be very difficult, contradictory, and litigious (concentrating more power in the judiciary and increasing the intensity of the judiciary wars). Moreover, I see a lot of value in an integrated national economy and am somewhat less concerned about getting all of my policy preferences than I am about maintaining a functioning integrated economy that isn't unnecessarily hindered by higher transaction costs associated with companies having to modify policies and procedures to operate nationwide. In a sense, I'm worried about poor people in Mississippi and Texas not being able to access critical goods or services because of byzantine state regulations – and their own state's indifference. I do think more socialist/left policy options will only work as national policies, and that's where I want to concentrate my political energies. And while experimenting in the laboratories of democracy isn't per se bad, and can be very productive, I think that transferring the political center of gravity from the Federal Government to the States won't ultimately solve any of the problems I want government to solve. While we can't predict what kinds of problems might creep up if state government's become bigger players in structuring the national economy, those I can imagine trouble me. 

2. While this may have been the case in the 18th and 19th centuries (and I don't really think it was totally true then – See the history of the Articles of Confederation period), there are serious democratic problems with individual states imposing economic policies that have national consequences. Namely, out-of-state economic actors do not have representation in the States where policies (that harm their livelihoods) are created. But they are represented in the Federal Government. I would support many policies that blue states might be interested in passing. But, I think people that might be affected by these policies should be represented in the political process that ultimately affects their rights. I'd often want these interests to lose in a political battle, but I don't want them on the sidelines. I think sidelining people breeds discontent and political instability. In a sense it's a one-way ratchet that (to those that feel harmed) justifies all number of retributive and increasingly radical responses. Our political system is far from perfect, and the Senate certainly skews towards Republicans. But, that's not written in the stars or inevitable. But it's much harder to change this reality if we attempt to sidestep the debate altogether. 

Of course, state regulations can always be preempted by Congress without the existence of the D.C.C.. But, I worry that the Federal Government will be less interested in working towards solutions (i.e. passing laws that will preempt states) if the political center of gravity shifts from the Federal Government to the States. I think this kind of shift will result in a dynamic similar to one that often creeps up in separation of Powers discussions. There, when you move the political center of gravity from Congress to the Executive Branch, we've seen that Congress is less likely to act. In my utopia, I want Congress to possess the most political power and to be the most active branch of government because, all things considered, on my questions it is the most representative branch of government.
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