QUESTION: The basis for deciding the existence and extent of any burden on interstate commerce is worryingly vague, and Justice Stewart's opinion makes it sound as though such decisions should be made on a case by case basis since they are purely relational in nature to local interests.
ANSWER: I think that is probably right, if we take the test seriously. But I don't. I think something else is going on.
QUESTION: Such decision-making seems to grant too much judicial power, to the point that it encroaches on the nation's legislative powers and even the states' executive powers.
ANSWER: Perhaps. But Congress has been aware of this judicial practice form many years and chosen not to enact any legislation to shut it down. It could do so tomorrow if it wanted.
QUESTION: My views are that business laws and regulations that effectuate "clearly excessive" burdens on interstate commerce should be remedied through further/amended laws passed by the legislature, and not by the courts.
ANSWER: That is a perfectly defensible position. But I will raise the same point as above: at what point can we say that Congress has effectively blessed this doctrine by not intervening?
QUESTION: The burden that was to be imposed on Bruce Church may have been unfair, but unfairness does not seem to me to be actionable.
ANSWER: But couldn't you say that administrative order in that case discriminated against interstate commerce? What purpose did Arizona have for requiring Bruce Church to pack the cantaloupes in Arizona? And isn't "unfairness" "actionable" when it constitutes discrimination against interstate commerce?
QUESTION: The question of whether it was unjust, however, should have been answered by legislation. Is the Court able to overcome this apparent overstepping of boundaries simply through the omnipotence of the Commerce Clause?
ANSWER: I guess it is the Court's understanding of the Commerce Clause. As well as Congress's longstanding acquiescence.
QUESTION: Or is it due to lack of legislation that addresses the issue?
ANSWER: Well, yes, that too. There is never a dormant Commerce Clause issue if Congress has spoken to the question.
QUESTION: Or is a Court judgment simply a more expedient way of arriving at a solution than the legislative process?
ANSWER: I would not say "simply more expedient," though you could certainly make the case that having the courts monitor such laws makes more sense than leaving it to Congress. The judicial system is much better equipped to combat such frequent instances of protectionism and "undue burdens." But it is not "simply" that. It is also the long history of the Commerce Clause's purposes, combined with Congress's apparent blessing of what the Court has been doing for more than 150 years.
ANSWER: I would not say "simply more expedient," though you could certainly make the case that having the courts monitor such laws makes more sense than leaving it to Congress. The judicial system is much better equipped to combat such frequent instances of protectionism and "undue burdens." But it is not "simply" that. It is also the long history of the Commerce Clause's purposes, combined with Congress's apparent blessing of what the Court has been doing for more than 150 years.