In a 6-3 decision, the Court reaffirmed dormant commerce clause behaviors on monday in United Hualers Association v. Onieda-Herkimer Solid Waste Authority. The Court holds that local acts that favor certain local governments is not a violation of interstate commerce because the benefit to the local community outweighs any potential restrictions on interstate commerce. The Court held in C&A Carbone v. Clarkstown that legislation forcing private haulers to deliver trash overflow to private processing facilities was an unconstitutional violation of the Commerce Clause. They suggested in United Haulers Association that favoring a public entity does not violate Congress’s right to control interstate commerce.

The decision stands out because the newly-appointed Chief Justice and Justice Alito authored opposing decisions. The Chief Justice repeatedly cites Justice Souter’s dissent in Carbone as justification for favoring local public entities. He argues that the majority’s silence in Carbone in respect to the public-private distinction was a result of the Court’s desire to address only the issues before the Court. The Chief Justice takes a very Republican (philosophical, not political) view of the issue and ultimately concludes that:

The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition. In this case, the citizens of Oneida and Herkimer Counties have chosen the government to provide waste management services, with a limited role for the private sector in arranging for transport of waste from the curb to the public facilities.

Justice Scalia, in his typical fashion, pens an interesting and short concurring opinion. The second sentence reads: “I write separately to reaffirm my view that the so-called “negative” Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.” He argues that stare decisis would dictate that the Court maintain the ‘negative’ commerce clause 1) when a law “facially descriminates against interstate commerce” and 2) when a law is identical to one previously struck down by the Court. I admire Justice Scalia for adhering to precedent even when he doesn’t agree with it. Right or wrong, that is the textbook definition of stare decisis. Justice Scalia refuses to join part II-D of the majority opinion because he says it reliance on ‘Pike (v. Bruce Church) Balancing‘ rules on a purely legislative action.

Justice Thomas’s concurring opinion takes Justice Scalia’s one step further. He argues that the dormant commerce clause should not only be restricted, it should be completely removed from the Court’s jurisprudence.

Although I joined C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), I no longer believe it was correctly decided. The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice. As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.

Justice Alito, who is actually referred to as ‘the Junior Justice’ or ‘JJ’ by the Court, tries to take stare decisis even further. He argues that the Court’s ruling in Carbone was virtually identical in fact to this case. He argues that the local government in this case had a number of options and only chose to limit interstate commerce in order to better itself. Justice Alito sticks very narrowly to the facts and judicial implications of the case in his dissent instead of taking a cue from colleagues and hyperbolizing everything or ridiculing his colleagues for havinginsufficient experience to properly interpret a jurisprudence. This isn’t the first time that Alito has written a boring(solid) dissent. I say we remove him from the Court; being boring is definitely a high crime or misdemeanor.

Listen to Rudy Guliani’s glorious rant against ferret-ownership before tonight’s debate. It is sure to entertain(scare) for hours.



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