A Recent Opinion Shows a Clear Split Between Chief Justice Roberts and Justice Alito On Federalism Issues -
With Roberts Displaying Justice O'Connor's Respect for the States, and Alito Lacking that Respect

This week, the Supreme Court handed down its decision in United Haulers v. Oneida-Herkimer Solid Waste Management Authority. The topic - the Dormant Commerce Clause -- is not a barn-burner, but the decision does provide an early indication of how Chief Justice Roberts and Justice Alito are each likely to analyze states rights questions and other issues.

As readers will recall, Justice Alito replaced Justice O'Connor on the Court. But will he betray her legacy of respect for the states?

Unfortunately, his dissent in United Haulers provides strong reason to think so.

The Facts and the Issue Raised in United Haulers

The case involves "flow control" ordinances that require trash haulers to deliver solid waste to an appointed processing facility -- in this case, a government facility. The Court previously had held in C & A Carbone, Inc. v. Clarkstown that the government could not direct trash haulers to a particular private processing facility, because that would discriminate against out-of-state facilities.

In this case, because it is a government facility that is receiving the waste, the Court ruled that the flow control ordinance did not violate the so-called Dormant Commerce Clause. (The Commerce Clause, of course, empowers Congress to regulate interstate commerce. The "Dormant Commerce Clause" - not actually a clause, but a principle implied from the Commerce Clause -- prohibits states from acting in ways that might undermine interstate commerce and, therefore by implication, Congress's commerce power.)

The Concurrences: Appropriate Questions About the Viability of the Dormant Commerce Clause

Frankly, I have always believed that the Dormant Commerce Clause is a senseless doctrine. Concurring in the Court's judgment, but not its reasoning, in United Haulers, Justice Thomas took direct aim at the doctrine - and I agree with him. Thomas pointed out that the Court has not yet found workable standards in this area, and that, in any case, it confounds common sense, from the standpoint of federalism, to use one of Congress's powers, even though unexercised, to limit the powers of the states. Accordingly, Thomas suggests simply junking the Dormant Commerce Clause: "[A]pplication of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court's negative Commerce Clause jurisprudence."

In my view, the Dormant Commerce Clause doctrine is just another example of how the federal government has sidelined the states. Usually it is Congress muscling aside the states; in this context, it is the Court itself.

It is very hard to defend Justice Scalia's view on the matter, as expressed in his concurrence. On one hand, he agrees with Justice Thomas that the idea of a Dormant Commerce Clause is nonsense: "The historical record provides no grounds for reading the Commerce Clause to be other than what it says -- an authorization for Congress to regulate commerce." (Internal quotation marks and citation omitted.)

Yet Scalia is nevertheless willing to employ stare decisis to grandfather in existing rulings under the Dormant Commerce Clause.

Given that a major reason the Dormant Commerce Clause cannot be defended is that it has not led to predictable tests, it is hard to understand why the most vocal proponent on the Court in favor of bright-line rules would be willing to keep alive precedents that defy logic.

In any event, both Justices Thomas and Scalia would not invalidate the flow control ordinance in United Haulers.

The Majority's Ruling: Upholding the Flow Control Ordinance Because Government Is Different in Kind from a Private Company

The majority opinion in United Haulers, written by Chief Justice Roberts, does not question whether there should be a Dormant Commerce Clause doctrine. Instead, it upholds the flow-control scheme at issue by distinguishing C & A Carbone on the ground that a government program or facility, like the one at issue in United Haulers, is different in nature from a private facility, like the one at issue in C&A Carbone. Thus, favoring an in-state private facility can violate the Constitution - but favoring an in-state government facility does not.

According to Roberts, the difference lies in the fact that the government is presumed to be operating for the larger public good, and not for mere profit or protectionism, whereas a private entity would only be motivated by its own profit or protectionism, without regard to the public good. This sound observation displays an understanding of our representative democracy and a deference to local (and state) authorities that is reminiscent of Justice O'Connor's healthy and robust respect for local and state government. Roberts explains that "

[u]nlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens. These important responsibilities set state and local government apart from a typical private business." (Citations omitted.)

These are core principles that should not have to be stated. The Alice in Wonderland quality of the Dormant Commerce Clause doctrine, though, forced Chief Justice Roberts to have to state the obvious.

The Dissent: There Is No Difference Between a Government Operation and a Private Business and, Therefore, the Court Can Set National Economic Policy

In sharp contrast, Justice Alito's dissent sees no such distinction between government waste programs and private programs. Thus, Justice Alito sees no difference between the Carbone case and United Haulers - and would follow Carbone to deny the government the ability to legally mandate that its own facility be used in order to promote flow control. In Alito's view, this is protectionism, just as surely as if the government had mandated the use of in-state private facilities rather than out-of-state facilities.

Even more disturbingly, in Alito's view there is no problem with a federal court telling a state that it cannot control the flow of solid waste by employing its own facilities exclusively. If his view had been followed, the Court would be giving itself the power to determine national public policy on solid waste, in the breach. That would be both a usurpation of Congressional power and a violation of state power.

Here, as before, the Dormant Commerce Clause doctrine clashes sharply with constitutional federalism. There is no federal statute at issue here, and hence no relevant exercise of the Commerce Clause power to be analyzed.

(Moreover, as an aside, even if there were a federal statute at issue, under the Tenth Amendment, the Commerce Clause prohibits Congress from exercising carte blanche to directly regulate the states. Justice O'Connor's opinion in New York v. United States is the leading case on this point.)

Strong Indications that Justice Alito Will Be No Justice O'Connor

The message of Justice Alito's dissent is clear: He is likely to roam far afield from Justice O'Connor's instinctive respect for federalism. Indeed, in his dissent he enthusiastically embraces Garcia v. San Antonio Metropolitan Transit Authority, Justice Blackmun's manifesto against judicially-enforced federalism. Suffice it to say that he does not invoke the spirit of the Court's more recent federalism jurisprudence.

Significantly, Alito was in the majority in the Supreme Court's recent partial-birth abortion decision, which plainly and deeply departs from Justice O'Connor's views in that arena. It would thus appear that he may well be the anti-O'Connor in the very arenas she cared most about: women's rights and federalism. There is a third arena where she was innovative, influential, and deeply concerned: the separation of church and state.

We now must wait to see how Justice Alito votes in the Supreme Court's pending decision on whether there can be taxpayer standing in Establishment Clause cases. If he votes to narrow the capacity of citizens to challenge their government's financial support of religion, I think we can be deeply certain that this is, in fact, a very new Court.