Sunday, May 9, 2010
Ryan D. Wheeler (J.D. 2009, Pepperdine) has published Note, The Court Lends States a Break: Department of Revenue of Kentucky v. Davis and the Civic Responsibility Exception to the Negative Commerce Clause, 37 Pepp. L. Rev. 375 (2010). Here is part of the Conclusion:
Davis, in tandem with United Haulers, marks the first significant change to the Court's negative Commerce Clause analysis since the introduction of Pike nearly forty years ago. However, the impact of Davis may not be fully realized for many years. The Court has shown an increasing tendency to shy away from invalidating laws under the negative Commerce Clause, and the new civic responsibility exception shows that there is growing support in the Court to attack the doctrine in piecemeal fashion.
Advocates of states' rights will claim victory in Davis, but the opinion should not be read so narrowly. Far from lessening the power of the federal government over the states, the Court merely noted the importance of states having the capacity to act when Congress does not dictate otherwise. In so doing, the Court merely reaffirmed which branch should regulate state action in the commercial sphere, as nothing in the opinion restricts Congress's ability to regulate state waste disposal methods, state differential income tax laws, or any other traditional government function.