Recent decisions have revealed a growing rift in the Supreme Court on the question of the effect of the commerce clause on state legislation. This question, a perennial one in our constitutional history, concerns state legislation affecting in some way or other the carrying on of interstate business, and the validity of that legislation in view of the clause giving Congress the authority to regulate interstate commerce. The permissible scope of state activity in the absence of Congressional action has been the troublesome problem. If Congress acts, the issue is a relatively simple one. When the state action conflicts with federal legislation, the former is invalid. When Congress has not acted, however, it devolves upon the Supreme Court (according to the traditional approach, under its own reasoning at least) to decide whether the state law impinges on the unexercised Congressional authority. The Court from the beginning has devoted much of its time to the laborious task of working out rules and formulae with which to scrutinize state legislation challenged on this basis. These principles have undergone noticeable evolution and alteration through the years, but the Court has consistently attempted to find some logical basis for elaborating the implications of the "dormant" commerce power.
Vincent M. Barnett, Jr.,
THE SUPREME COURT, THE COMMERCE CLAUSE, AND STATE LEGISLATION,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol40/iss1/4