Talk:Dormant Commerce Clause

"Laws "affecting interstate commerce"

Right out of the blocks is a serious error. The U.S. Constitution emphatically does not "grant Congress the power to enact legislation that affects interstate commerce." The Commerce Clause only grants Congress the power to regulate interstate commerce [i.e. commerce itself] among the States. As we have learned from undisciplined politicians and judges, anything theoretically can "affect" interstate commerce. That is absolutely not what the framers had in mind. This false and misleading introductory language must be changed; you would do well simply to quote the Constitution instead of giving a very liberal interpretation of it. Tjbeausay (talk) 15:39, 3 April 2010 (UTC)tjbeausay

Legalese

This article as it is written now has sections where the results of court decisions are listed maybe three at a time, all in legalese, and about cases that are not described in the Wikipedia. The "common man" reading this does not have law books at his fingertips, nor the inclination to use them if he did. Long sections of this read like a report by a student in law school, or a law clerk for a judge, or by a written filing by a lawyer arguing a case before a court. This is absurd, because the Wikipedia isn't any one of these. On the other hand, if it is one of the giant decisions, like Marbury v. Madison, then putting that link in is appropriate, because Marbury v. Madison is a case that is described in another Wikipedia article in terms that a common man can understand. That's a problem - there are plenty of articles that are written in a bunch of either legalese, or exotic jargon from some field like engineering, the sciences, or mathematics. (I have seen some comments written down, say about an article about physics, that say, "I have my master's degree in physics, but I still can't understand it.") So, don't write this like a legal brief, either.72.146.43.188 (talk) 08:35, 15 September 2008 (UTC)

Comments

This article needs serious help. Perhaps a law student could tackle it. Agree with comments concering Congress' desire. Can Congress desire something? Legislators could. Congress acts or implements. Congress cannot feel because I was corrected first-year law school for same mistake. I will try to rewrite this. How does dormant commerce clause fit into general commerce clause discussion. Perhaps this should just be noted in the main article.

Article should state: When was this doctrine first inferred by the Supreme Court? When was it first called this? Tempshill 21:19, 21 May 2005 (UTC)

Help is coming, gradually......Jvonkorff (talk) 11:47, 28 August 2008 (UTC)

• Why does the article state that the DCC "evolved out of Congress' desire to federally regulate commerce by using powers not specifically enumerated in the Constitution"? I don't see what Congress' desire has to do with it. It is a Court-created and Court-recognized doctrine interpreting the Constitution's grant of power to Congress. If the Constitution grants Congress the power to regulate interstate commerce, it follows that the Constitution reflects intent NOT to grant that power to other (state and local) governments. The prohibition is not explicit, but rather implicit (dormant) in the grant of power to Congress. Congress may well want this power, but the power exists because that's how the courts interpret the text of the Constitution, not because Congress desires it. [User: steburns, July 30, 2005]

I think the article would read better if we started with current Supreme Court jurisprudence in this area. Perhaps make the John Marshall case the first point. It is complicated to read. To be fair, it is not an easy topic. User steburns is correct.75Janice 17:52, 2 January 2007 (UTC)75Janice 16:51 UTC 2 January 2007

I think that there is a gross misunderstanding of the word "desire" here. The "desire" of Congress to express a power is exercised by passing a bill saying so. Next, the President can concur by signing the bill into law. Otherwise, the law might be passed over his veto. Finally, if the courts concur with the expression of power by ruling that it is constitutional in any court cases that might arise, then the expression of power by the law is valid. That's how the Federal government system works. Assuming that it was a law that was signed by the President, that means that all three branches of government have concurred - and by definition, the Congressional power is a valid one. There is no use arguing with that notion here. If the People don't like the law, they have three recourses - they can elect new Senators and Congressmen who will repeal the law. Or they can arrange to elect Presidents and Senators who will place new Federal judges on the bench who might delare the law law to be unconstitutional. Or they can arrange to elect a Congress and state legislatures who will Amend the Constitution to overrule the power that the Congress has previously "desired". This sort of thing has happened many times in our American history: the Supreme Court has ruled laws to be constitutiona, and then some years later, overruled itself and declated them to be unconstitutionsl. For example, there were all sorts of laws concerning slavery that were upheld, but then later on declared to be unconstitutional. This is how the system works - it is self-correcting over time, and pulling your hair out declaring that "Congress dosen't have the power!" doesn't work. To summarize, if Congress expresses a power, and the Federal courts uphold it, then Congress HAS that power - for the time being, and maybe indefinitely. Also, the "desire" of Congress is not some sort of wishful thinking, but it comes from enacting legislation.72.146.43.188 (talk) 08:12, 15 September 2008 (UTC)

Additional Exception

There is at least one more exception to the Dormant Commerce Clause.

Quarantine - the states can keep out harmful agents if it is in the interest of public health (see Rehnquist dissent, Philadelphia v. New Jersey). The permissibility of the state regulation is balanced against the interest in interstate commerce - Kassell v. consolidated Freightways But still, the quaratine cannot be discriminatory. It is only allowed if there is absolutely no other way for the state to enforce important health policies (i.e. if NJ legislated against in-state trash producers, the Court may allow them to discriminate out of state trash if there was no other way to enforce the policy. The key is that NJ must be acting within its own borders in attempting to prevent health problems before they can discriminate against out-of-staters) I am new so i dont think im going to get into the main page, so I will let someone else tackle this one.

Jadyking 20:33, 20 April 2007 (UTC)

Section - "Rejection"

I would like this section fleshed out. At least, to have the natural issues treated that this provokes. For example, on what basis do these Justices reject the doctrine? How do they react to the argument that the CC + 10th Ammendment = DCC? 71.34.120.58 (talk) 04:07, 29 November 2007 (UTC)

Added a bit on this and changed the title to criticism, because the title rejection suggests that the doctrine no longer exists, which of course is not correct. Jvonkorff (talk) 18:04, 27 August 2008 (UTC)

It is always possible for the some Supreme Court Justices to say that an implied power exists, but for others to say that it doesn't exist. The decision goes in the favor of the majority. That is why we have majority opinions and dissenting opinions. Some dissenting opinions persist for scores of years, or for centuries. Some dissenting opinions disappear, and in the course of time, some dissenting opinions become majority opinions. I read recently that Chief Justice William H. Taft, being a great consensus-builder and a great legal scholar, rarely voted with the minority. But on the other hand there was a case about minimum wages where he was in the minority, and he wrote a dissenting opinion. Within about 10 years, that dessenting opinion had evolved into a majority opinion, the Supreme Court overruled its previous decision (about 1936), and Chief Justice Taft was shown to have been right all along. The new decision has never been overruled or seriously challenged.72.146.43.188 (talk) 08:24, 15 September 2008 (UTC)

Local Processing

Added section on local processing. These cases represent an important line of dormant commerce clause cases that lead to the Carbone decision. Begun Carbone discussion; will follow up with recent S Ct case when have a chance. Jvonkorff (talk) 19:39, 28 August 2008 (UTC)

Section Taxation

Adding some material on state taxation. So far historical material heavily drawing on Jefferson Lines decision. Just about to add Complete Auto Transit, when I have a chance.Jvonkorff (talk) 23:53, 26 August 2008 (UTC)

Section Health and Safety

Brief discussion of the difference between health and safety regulation and regulation of commerce. More to come. Jvonkorff (talk) 03:01, 28 August 2008 (UTC)

Scalia and the Dormant Commerce Clause

The article groups Scalia with Thomas in rejecting the Dormant Commerce Clause, but Scalia's position is a bit more subtle than that. It's, more or less, that he doesn't think it was the original intent of the clause, but that it now has enough stare decisis weight that it should be preserved in the areas of laws where it's well established; he objects mainly to extending it to new areas. So he's been in the majority, even a decisive vote at times, in using the DCC to invalidate state laws that discriminate between in-state and out-of-state producers; see, for example, his vote in the majority of Granholm v. Heald. --Delirium (talk) 03:01, 11 January 2009 (UTC)

What the doctrine says

This article ought to say what the doctrine says before a long paragraph exhibiting examples. 2601:445:437F:FE66:C159:FB53:35FF:8A27 (talk) 17:38, 20 March 2018 (UTC)

pork producers

needs update with last week's pork prodiucers case about california. 2603:900A:2301:578B:5017:34E0:F81E:F3D2 (talk) 17:23, 16 May 2023 (UTC)