Thursday, June 28, 2007

All Signs Point to Unsuccessful Dormant Commerce Clause Challenges in the High Court

All right - my magic 8 ball didn't really say that. But, based on the most recently reviewed dormant Commerce Clause challenge in the Supreme Court, I think the statement might be true. The case I'm referring to is United Haulers v. Oneida-Herkimer Solid Waste Management Authority, 127 S.Ct. 1786 (2007). Although United Haulers fails to provide clarity due to the four divergent opinions, I think it provides a window, albeit a dirty one, into how the Roberts Court might revise dormant Commerce Clause jurisprudence. This is of particular interest to ag law buffs, given all of the anti-corporate farming activity in the last few years.

Here's a quick synopsis of the facts for those of you who have been absorbed by America's Got Talent and haven't read the opinion . . . In response to a mounting trash crisis two New York counties created a solid waste management authority to improve trash processing and recycling. Because the new authority's improved services cost more than private services, the counties enacted a so-called "flow control" ordinance which required citizens to send their trash thither. United Haulers and its brethren trash haulers challenged this ordinance under the dormant Commerce Clause claiming that they could more cheaply remove trash to out-of-state processing facilities.

Given the trash haulers' past Supreme Court win in Carbone, a case with an almost identical fact pattern, I guessed that United Haulers was going to be a slam dunk for the garbagemen. But no, Chief Justice Roberts (author of the majority opinion) decided to shake things up. According to Roberts, "laws that favor the government in (areas of traditional government activity)-but treat every private business, whether in-state or out-of-state, exactly the same-do not discriminate against interstate commerce for purposes of the Commerce Clause." So there lies our brand-spanking new public/private distinction. It's now OK to privilege local, public businesses as long as the benefits outweigh incidental burdens on interstate commerce under Pike (incidentally, only four justices signed on to the Pike Balancing portion of the opinion).

Justice Alito, joined by Justices Kennedy and Stevens, share in my opinion (or maybe more appropriately, I theirs) that United Haulers is practically indistinguishable from Carbone factually. Alito wrote,
"(t)he Court exalts form over substance in adopting a test that turns on this technical distinction . . . ." I didn't foresee myself agreeing so fully with Alito, but I think he called it in this case.

I'm curious about where the majority is going by crafting such a fine technical distinction. After mulling it over for an evening, I think the opinion could be 1) exactly what it purports to be, a fine-tuning of the already over-tuned dormant Commerce Clause, or 2) a harbinger of a Court more interested in judicial restraint than striking down state laws via the dormant Commerce Clause.

I'm inclined to go with the latter for a few reasons. Despite the fact that members of the Court diverged in their reasons for doing so, 6 out of 9 decided that the dormant Commerce Clause did not justify striking down this state law. Moreover, the public/private distinction that the majority used to distinguish Haulers from Carbone is strained. It was as if the Haulers majority was making every effort to respect precedent without actually following it. The waste processing facility in Carbone may have been technically private, but it was effectively public - the city was even going to assume the title after a number of years. Furthermore, I think that the level of disagreement itself portends change, kind of like different temperature air masses colliding.

Unfortunately, my meteorological analogy is only going to last one sentence because the opinions of the Justices will not blend nearly as well as air masses. Thomas does not believe in the existence of a dormant version of the Commerce Clause. Scalia refuses to endorse any expansion of the Commerce Clause beyond its current scope. Roberts, Ginsburg and Souter seem to be open to refining existing jurisprudence with new doctrines such as the public/private distinction, but Alito, Kennedy and Stevens are pushing back with stare decisis. With this level of disagreement I'm not sure what to expect from future Commerce Clause cases, but I do not think that the Court will be upholding as many challenges as it has previously.

So while the Eighth Circuit may be going hog wild striking down anti-corporate farming laws, I'm not so sure that the Supreme Court will uphold these opinions - that is, if it ever decides to review one of these cases. However, I don't think that this new public/private distinction will provide any new ammunition for the anti-corporate farming crowd. After all, there are no local, public farms that benefit from these laws. But, I guess if the legislature wants to create one now, it has a free pass.


I tried to think of any other ways that the public/private distinction might aid anti-corporate farming defenders. My only thought is that one might argue that waste streams from corporate farms pollute public lands and public waters (on second thought, water might be better than land since most public lands are federal and water is a more traditional area of state action). While farmers have already played the environmental card unsuccessfully, the Court's newfound concern for the public provides a new dimension that might be worth a paragraph in a future brief. Of course, if a state was trying to protect public land and water, it would probably make more sense to apply regulations to all farms, not just corporate farms. Rather than providing a specific argument, Haulers might be better if considered an indication that the Court might be open to overturning challenges to anti-corporate farming laws.









1 Comments:

Anonymous Anonymous said...

Preach on Sister Sam! I agree with most everything you said. Roberts references Lochner in his Pike balancing test analysis and I think that is pretty much what the plurality thinks of the current way that Pike is applied currently.

7/05/2007 3:20 PM  

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