Carbon, commerce and the Constitution

If coal-rich North Dakota carries out its threat to sue carbon-leery Minnesota, conservative and liberal ideologues who like to rant in the comments sections of media Web sites will be forced to choose between their cherished beliefs on two hot-button issues: judicial activism and global warming. Allow me to explain.

The Commerce Clause of the Constitution explicitly gives Congress the power to regulate commerce among the states, and Congress uses this power to legislate on everything from transportation to civil rights. On the other hand, the Constitution doesn't say much about the role of the states in interstate commercial relations. Relying on this constitutional silence and concerns about destructive interstate commercial rivalries, the men in black (and they were all men, at that point) long ago decided that if Congress explicitly has the power to regulate interstate commerce, the states implicitly do not.

This came to be known as the "dormant Commerce Clause doctrine," because it applies even where there is no actual conflict between state laws and laws adopted by Congress under its Commerce Clause powers -- that is, it applies even when Congress' own Commerce Clause powers are "dormant." Thus, under this judicial gloss on the Constitution, judges are empowered to strike down state and local laws that are shown to improperly (by the Supreme Court's standards) interfere with interstate commerce.

People who are usually labeled as judicial conservatives have attacked the validity of this doctrine on several grounds. The late Chief Justice William Rehnquist complained that the Supreme Court's case law in this area encroached on traditional state power and inhibited the states from serving their fabled function as the "laboratories of democracy."

Justice Antonin Scalia has argued that mere judges are ill-equipped to decide whether the interests served by a state law outweigh the burdens imposed on interstate commerce, a process he once compared to "judging whether a particular line is longer than a particular rock is heavy." And Justice Clarence Thomas has objected that this doctrine does not appear in the text of the Constitution and is, in his view, simply an invention of the judicial branch.

Recent cases have witnessed Chief Justice John Roberts imposing new limits on the doctrine, Scalia calling for the court to abandon significant chunks of it, and Thomas urging that the doctrine be jettisoned altogether.

So, pretty clearly, a good conservative should shun the dormant Commerce Clause doctrine as a matter of principle, right?

That hasn't stopped North Dakota's GOP attorney general from suggesting that he may use the dormant Commerce Clause doctrine to challenge Minnesota's requirements that electric utilities consider the possibility of future carbon taxes in their long-range planning. The requirement seems innocuous enough, and the details of the lawsuit are still murky because the lawsuit is, well, still nonexistent.

But the argument is likely to be that Minnesota's law is really meant to encourage utilities to burn something other than coal -- something that would affect coal-dependent utilities in North Dakota that export electricity to Minnesota. In this view, Minnesota's law improperly meddles with the interstate electricity market between North Dakota and Minnesota.

In any event, if this lawsuit comes to pass, we will be treated to the spectacle of a Republican attorney general using a constitutional theory roundly denounced by leading judicial conservatives as judicial activism to challenge a measure signed into law by a leading Republican governor and non-candidate (so far) for president.

That this is all about global warming further complicates the ideological calculus. Many conservatives have suggested that global warming is a myth, or much exaggerated, or caused by something other than human activity. Even those non-Tea Party conservatives who concede the inconvenient truth that we are melting the polar ice caps tend to argue that keeping the economy free of regulation is more pressing than keeping Miami free of the Atlantic Ocean.

So, what should good, tough, ideologically pure conservatives, maybe even ones who are quite vigorously not yet running for president in 2012, do to please the party faithful? They might opt to come out strong for conservative judicial restraint, bearing in mind that in this instance that also means siding with the tree-huggers and pro-regulation liberals in their defense of Minnesota's global warming law. Or they might give priority to their doubts about the wisdom of global warming regulation and join the attack on Minnesota's law, understanding that in doing so they validate the kind of judicial elaboration of the Constitution's text that angers conservative heroes Scalia and Thomas.

For those smirking liberal ideologues who are reading this, please don't smirk. It's not attractive, and your problems roughly mirror those of conservative ideologues.

Will you stand up for Minnesota's global warming law even if it means espousing the constitutional philosophies of people with names like Rehnquist, Scalia and Thomas? Or will you place a higher value on the notion of a living constitution subject to re-interpretation by the judiciary and accept the potential negative consequences for Minnesota's global warming law?

Let the ranting begin.

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Mehmet K. Konar-Steenberg is an associate professor of law at William Mitchell College of Law. The views expressed here are his own.

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