United Haulers Association Decision:

Today the Supreme Court decided United Haulers Association v. Oneida-Kerkimer Solid Waste Management Authority, yet another dormant commerce clause challenge to local solid waste management regulations. In this case, the Court upheld a local ordinance requiring that all waste within the jurisdiction be sent to a government processing facility. Writing for the Court, Chief Justice Roberts summarized the Court's holding:

“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same— do not discriminate against interstate commerce for purposes of the Commerce Clause.

Of particular interest is the lineup in this case. The Chief Justice's opinion was joined in full by Justices Breyer, Souter, and Ginsburg, with Justice Scalia joining all but one section. Justice Thomas concurred in the result. Justice Alito dissented, joned by Justices Stevens and Kennedy. Comparing this lineup with that from the Carbone decision suggests this decision could signify a shift in the Court's Dormant Commerce Clause jurisprudence toward less-exacting scrutiny of state and local regulations that interfere with interstate commerce.

UPDATE: Ann Althouse has some commentary here.

Isn't this just the market participant doctrine? Since the State itself is involved, running the processing facility, it has free reign, no?
4.30.2007 12:22pm
Did SCOTUS issue a ruling in the Kentucky muni-bond taxation case along with this? Many observers felt the Court would summarily decide the bond case once they handed down the decision in United Haulers.
4.30.2007 12:54pm
Hans Bader (mail):
Once again, Justices Roberts and Alito have split on a business-related case, with Chief Justice Roberts voting to uphold a local ordinance taking over waste disposal against a dormant commerce clause challenge, and Alito voting in dissent to strike it down.

(They split in the recent Watters v. Wachovia case, too, with Alito in the majority ruling for the bank, and Roberts dissenting).

The dormant commerce clause is valuable to the economy and business because a broad interpretation of it preempts a patchwork of conflicting state and local regulations that interfere with trade and investment.

Alito likes the dormant commerce clause, while Chief Justice Roberts is less enthusiastic about it, and the court's ideological outlier justices (Thomas and Scalia on the right, Ginsburg on the left) don't like it much at all.

The result is ironic because the chamber of commerce and the business community were very enthusiastic about Roberts, and more tepid in their support of Alito. But Alito has turned out to be a better justice for business's bottom line than Roberts.

I predicted this at the time Alito was nominated, making the point to the Wall Street Journal and Investors Business Daily that Alito would be more likely than most potential nominees to understand the regulatory and legal obstacles confronting business.

Scalia and Thomas claim the dormant commerce clause has no basis in the constitution, and that the founding fathers didn't intend to preempt states' rights to regulate.

They are wrong. The Founding Fathers didn't fetishize states. In fact, they were so distrustful of state regulators that they applied uniform federal common law, the Law Merchant (even in common-law diversity cases, such as contracts and torts), rather than state common law, probably to prevent states from interpreting their own common law in ways that might differentially impact out-of-state businesses. (That practice, recognized by a unanimous Supreme Court in Swift v. Tyson, 41 U.S. 1 (1842), was followed for about a century before being overruled in Erie Railroad v. Tompkins (1938)).

The founding fathers were pro-business, not a bunch of states'-rights worshippers. The United States was intended to be a big customs union and internal free trade zone.

Scalia and Thomas's reading of the framers' original intent about state regulation of commerce is just wrong and reflects a particular school of 20th Century "judicial restraint" ideology rather than the founding fathers' own perspective.
4.30.2007 1:11pm
No, this is not the market participant case. At issue was an ordinance that forced private waste haulers to dispose of waste at the public facility. Slightly different.

The shift from Carbone seems to be that (1) Thomas has decided to abandon the dormant CC altogether; and (2) Scalia views a distinction b/w public acts that favor a public body and public acts that favor a private entity.

I'm generally against giving much bite to the dormant commerce clause, so this development is welcoming.

I believe this case also represents only Kennedy's second loss of the year?
4.30.2007 1:48pm
One extremely interesting tidbit is that Roberts cited Lochner in his policy statement at the end of the opinion as an off-hand slap towards what he felt the dormant commerce clause had become. He also had a couple of zingers in his footnotes too.
4.30.2007 1:51pm
arbitraryaardvark (mail) (www):
It's Herkimer with an H.
4.30.2007 3:00pm