NCJ Number
163698
Date Published
1996
Length
60 pages
Annotation
Three U.S. Supreme Court decisions during the 1993 term are analyzed to support the conclusion that the Court's nondiscrimination principle in interpreting the Commerce Clause of the Constitution does not serve any of the commonly stated objectives of economic efficiency, representation reinforcement, and national unity.
Abstract
The nondiscrimination principle asserts that State and local governments may not discriminate against interstate commerce. The principle has widespread support. However, it does not promote economic efficiency in individual cases, because the Court does not even attempt a careful accounting of the benefits and costs of laws that discriminate against interstate commerce. It also does not ensure that State and local governments will avoid preferences for those within their jurisdiction and regard their relevant community as the nation. The nondiscrimination principle is both too small and too big for this purpose. Despite these and other flaws, principle receives support for its promotion of a certain vision of the proper role of government. However, the principle should be abandoned. Decisions about the proper scope of State and local regulation should rest with state and local governments unless a reason exists for judicial intervention. Footnotes