Lochner Revenant: The Dormant Commerce Clause & Extraterritoriality
During the Lochner era, the Supreme Court, relying on broad interpretations of constitutional doctrine, struck down scores of state statutes with an essentially free hand. Today, some federal courts are heading towards a new Lochner era, in which numerous state laws regulating health and safety can be invalidated on the thinnest of constitutional grounds. The issues implicate not only a vast amount of national commerce but also the Constitution’s careful balance between federal and state power.
Specifically, in two decisions from the late 1980s, the Supreme Court extracted language from a 1935 decision and used that language to fashion a new extraterritoriality principle within dormant Commerce Clause jurisprudence. In the midst of disarray in the circuits, extraterritoriality has now taken on a life of its own. It has been applied by the lower courts to overturn a host of state statutes, including ones related to ads depicting sexual acts with minors, online auctions, anti-spoofing laws (which ensure the number showing on a cell phone is the origin of the call), and the online publication of public officials’ home addresses. With the extraterritoriality principle, the dormant Commerce Clause has now morphed from a narrow anti-discrimination rule into a broad restriction on state sovereignty. Absent Supreme Court intervention, the nation appears to be verging on a new Lochner era. This article unwinds the misinterpretations that are leading the lower courts astray and points the way out of this dangerous path.
