612
Thomas, J., dissenting
expansion effected by today's holding further undermines the delicate balance in what we have termed "Our Federalism," Younger v. Harris, 401 U. S. 37, 44 (1971), I think it worth revisiting the underlying justifications for our involvement in the negative aspects of the Commerce Clause, and the compelling arguments demonstrating why those justifications are illusory.
To cover its exercise of judicial power in an area for which there is no textual basis, the Court has historically offered two different theories in support of its negative Commerce Clause jurisprudence. The first theory posited was that the Commerce Clause itself constituted an exclusive grant of power to Congress. See, e. g., Passenger Cases, 7 How. 283, 393-400 (1849).5 The "exclusivity" rationale was likely wrong from the outset, however. See, e. g., The Federalist No. 32, p. 154 (M. Beloff ed. 1987) (A. Hamilton) ("[N]otwith-standing the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the states, to insert negative clauses prohibiting the exercise
tional Law 439 (2d ed. 1988) ("The Supreme Court's approach to commerce clause issues . . . often appears to turn more on ad hoc reactions to particular cases than on any consistent application of coherent principles"); Redish & Nugent, "The Dormant Commerce Clause and the Constitutional Balance of Federalism," 1987 Duke L. J. 569, 573 ("[N]ot only is there no textual basis [for it], the dormant Commerce Clause actually contradicts, and therefore directly undermines, the Constitution's carefully established textual structure for allocating power between federal and state sovereigns"); B. Gavit, The Commerce Clause of the United States Constitution 22 (1932) (noting that the Court has set "no conscious standard" but has rather, "in an imperial way," decided whether each particular state action presented to it "was or was not an invalid regulation of interstate commerce").
5 See also Mayor of New York v. Miln, 11 Pet. 102, 157-159 (1837) (Story, J., dissenting); Groves v. Slaughter, 15 Pet. 449, 504, 506-508 (1841) (McLean, J., concurring); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (adopting a partial-exclusivity rationale for dormant Commerce Clause cases).
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