Where United Haulers Might Take Us: The Future of the State-Self-Promotion Exception to the Dormant Commerce Clause Rule

Dan T. Coenen, UGA School of Law

Abstract

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste transfer services from a single local private supplier. In a recent decision, United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required the purchase of these same services from a single local facility operated by the government itself. The Court thereby engrafted on the dormant Commerce Clause a new state-self-promotion exception, which receives its first extended treatment in this article. I begin by identifying the many contexts in which this exception may take hold, touching in the process on subjects as diverse as public/private joint ventures, utility regulation, the fixing of user fees, and state tax rules that are tied to government operations. I then explore the often subtle ways in which the state-self-promotion exception will interact with existing features of dormant Commerce Clause law, and I propose guiding principles for deciding difficult questions that the exception presents. Finally, I examine the spillover effects that this innovation may have on current debates over both the legitimacy and scope of the dormant Commerce Clause and the proper reach of Congress’s power to regulate commercial matters. My analysis reveals that the state-self-promotion exception is not a constitutional sideshow. Rather, it is a major, new doctrinal initiative that is destined to have far-reaching – though now greatly underappreciated – effects on our law.