Wednesday, October 11, 2023

National League of Cities: Rehnquist vs Brennan

Are the internal operations of state governments examples of "commerce among the several states?" Are they even commerce of any kind? Is there an interstate market for state government agencies, such as the Attorney General's Office, the Department of Revenue, and the state judiciary? Does Garcia take the Commerce Clause beyond the outer edges of even Wickard ?


Consider the competing positions of the majority and the dissent in National League of Cities on p. 236:

Justice  Rehnquist’s  opinion  for  the  Court  relied  on  the statement in the footnote to the Fry opinion that Congress could not “exercise power in a fashion  that impairs the States’ integrity or their ability to function effectively in a federal  system.”   Applying  the  Fair  Labor  Standards  Act  to  state  employees  would impose costs and limit  flexibility. The Court concluded that “insofar as the challenged amendments  operate  to  directly   displace  the  States’  freedom  to  structure  integral operations  in  areas  of  traditional   government  functions,  they  are  not  within  the authority  granted  Congress  by”  the  Commerce  Clause.

Here is the gist of Brennan's dissent:

Justice Brennan’s dissent, joined by Justices White and Marshall, argued that “restraints upon exercise by Congress of its plenary commerce power lies in the political process and not in the judicial process. . . . [T]he political branches of our Government are structured to protect the interests of the States, as well as the Nation as a whole, and . . . the States are fully able to protect their own interests. . . . ”
What are your thoughts?

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