Justice Antonin Scalia has put on the academic table the question of whether the doctrine of the dormant commerce clause should be abandoned. That is a significant contribution, for this is an issue that should be debated thoroughly. But Justice Scalia's campaign against the doctrine has been notably ambivalent. On the one hand, he argues that the doctrine lacks justification in constitutional text, history, and theory.1 On the other hand, assertedly feeling the pressure of stare decisis,2 he has gone along with, and even led, applications of the doctrine, although within narrow limits.3 In this essay, I argue that Justice Scalia's instincts are correct: the dormancy doctrine ought to be abandoned, though not necessarily for the reasons he suggests. The doctrine is the result of an historical anomaly. It has long outlived its usefulness, and stare decisis is an insufficient prop to keep it standing. I believe the doctrine requires the courts to make political and economic judgments that could be made better--certainly more efficiently and legitimately, and perhaps more wisely as well-by other branches of government. From the comfort of the academic sidelines that Justice Scalia has left, I suggest that he, and the Court, go further than merely complaining about the doctrine of the dormant commerce clause; they should do away with it.4 To prevent any confusion, I will assert right off that I recognize as essential to our national economy that there be some federal authority ready and able to invalidate state laws that unacceptably interfere with interstate commerce. Indeed, the need to prevent provincial state legislation was one of the principal reasons for the creation of our Constitution.' The need for a supervising authority is as necessary now as it was in 1787-and as it will increasingly be for the European Community in the 1990s. My argument is simply that this authority should not be judicial. I do not question whether the authority should exist; I only question who should exercise it. Congress itself can perform only a small part of the job. Most of the burden, therefore, must be borne by one or more administrative agencies. To some extent, Congress and the administrative agencies already perform the oversight function, but with judicial review under the commerce clause as a backup. Removing this backup, thereby shifting the function entirely to the political branches (with judicial review only to prevent arbritary action violating due process), would not necessarily result in the invalidation of fewer state laws. Any agency might well perform the primary oversight function more aggressively than the courts, because the agency would not confront the factors that appropriately inhibit the courts from unduly interfering with political decisions. Professor Tushnet suggests that Justice Scalia's "textual and historical attack on the doctrine [of the dormant commerce clause] is substantially less powerful than he believes it to be."6 I agree with this assertion, but, as I contend in Part I of this essay, the textual and early historical arguments in favor of the doctrine are shaky at best. These arguments are far from compelling, either in the sense that they are completely persuasive or that they preclude current debate about the appropriateness of the doctrine. In Part II, I set forth the reasons of constitutional policy and theory why the doctrine ought to be discarded.
Friedman, Richard D. "Putting the Dormancy Doctrine Out of Its Misery." Cardozo L. Rev. 12 (1991): 1745-61.