James M. McGoldrick, Pepperdine University School of Law, is publishing The Dormant Commerce Clause: The Origin Story and the 'Considerable Uncertainties'—1824 to 1945 in the Creighton Law Review. Here is the abstract.
The doctrine that Congress’ commerce power all by itself limits the state power to regulate interstate commerce is called the Dormant Commerce Clause, or sometimes the Negative Commerce Clause, because any limits are not specifically stated but rather are implicit from the grant of power to Congress. Marshall gave the Dormant Commerce Clause doctrine its name in Black-Bird Creek, his most famous case other than Gibbons to raise the dormant clause issue, but again he did not see the issue as controlling. And thus the Dormant Commerce Clause was born. As the Wayfair Court summarized the dormant commerce clause test, the modern version of the dormant commerce clause has evolved into two major components: First, state and local laws that discriminate against interstate commerce are virtually per se invalid. Second, a balancing test is used to determine if evenhanded laws impose an unreasonable burden. One of the most interesting aspects of Wayfair’s summary of the Dormant Commerce Clause test is that it leaves out any mention of the direct/indirect portion of the test. Marshall’s rational for the Dormant Commerce was modified, if not rejected, by Cooley v. Board of Wardens. Cooley emphasized that some subjects needed uniformity while other subjects needing diversity. This was called the Subject Test or the Doctrine of Selective Exclusivity. Gibbons, Black Bird Creek, and Cooley all mulled about for over a hundred years before the Court in 1945 in Southern Pacific v. Arizona, citing both Black Bird Creek and Cooley, summarized what it viewed as the then current state of the dormant commerce clause, “Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation.” The Court continued, “Ever since Willson v. Black-Bird Creek Marsh Co., and Cooley v. Board of Wardens, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.” Southern Pacific undertook a straightforward balancing of competing interest between the harm to interstate commerce and the importance of the state interest. Southern Pacific largely replaced Cooley’s subject test for more sophisticated balancing of competing interest approach. As the Court put it in Wayfair, “Though considerable uncertainties were yet to be overcome, these precedents [Gibbons, Black Bird Creek, and Cooley] still laid the groundwork for the analytical framework that now prevails for Commerce Clause cases.” This article will try to provide some light to those over 100 years of “considerable uncertainties” between Cooley and Southern Pacific, a period of time when the Court among other developments tried to reconcile the Gibbons’ exclusivity and Cooley’s selective exclusivity views of the Dormant Commerce Clause. The modern application of Dormant Commerce Clause test will be saved for another time.Download the article from SSRN at the link.