This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather. The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed. Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.
Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce. Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities. This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause. However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.
This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce. Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process. The republican guarantee, by way of the existing political question doctrine, might be interpreted as (1) a jurisdictional basis upon which state legislatures may enact facially discriminatory legislation, as long as such laws do not infringe on other, textually protected individual rights; and (2) a check on the courts’ ability to invalidate such rightfully enacted state laws.
For current purposes, this paradigm could provide support for the recent burgeoning in local food movements. These movements are characterized by state and municipal efforts to encourage, and even subsidize, local agriculture and food production. As scientific proof and support mount in favor of maintaining local food systems, states and local communities have taken legislative steps to protect local producers and consumers. But, these protective laws could face challenges based on the idea that facially discriminatory laws intended to bolster localism violate the Dormant Commerce Clause doctrine.
However, such laws, which reaffirm strong traditions of agrarianism reaching back to the founding of this nation, are at the heart of any republican system of government. The views of many members of the founding generation support a model of government based on the ability of local food producers and consumers to ensure the continued vitality of their communities through protection of local food systems. Thus, instead of these laws being invalidated on Dormant Commerce Clause grounds (or even being subject to a Dormant Commerce Clause analysis), attempts at invalidation of local food decisions could be precluded on the theory that, whatever other substantive protections are included in a theory of republicanism, protecting local agrarian traditions is at the heart of the republicanism guaranteed by Article IV.
Fundamentally, the rationale for invalidating such laws under the Dormant Commerce Clause is that such regulation is the province of the national government, and that the economic unification of the States will ensure the success of the Union; that “the peoples of the several states must sink or swim together.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935). In the context of interstate commerce in food products, however, that rationale was apparently based on a presumption of fungibility of various goods; for example, that milk from one state had the same social, economic, and health benefits as milk from any other state. But as commerce and scientific knowledge have expanded, scientists, farmers, and food advocates, among others, are pushing back against the notions that all food is equal, and that terroir does not play a role in producing quality, highly nutritious, sustainable food.
Instead, these direct and active participants in our food systems are suggesting that food grown and produced in a local area—a “foodshed”—provides not only greater benefits to the local human social and economic communities, but also greater health benefits, as well as fewer detrimental environmental impacts caused by global food production and transportation. Thus, these advocates suggest that when it comes to food, perhaps the continued vitality of the Union will be better served by each locality’s reliance on local food, thereby encouraging greater sustainability on the part of each of the Union’s component parts.
To this end, a number of states and communities have enacted laws requiring locally sourced food for various purposes, often in the form of purchasing requirements for local governmental entities, e.g., schools, governmental offices, or state prisons. Thus, these entities may be required to buy produce, meats, or other food products from local producers, to the exclusion of those out of state. Although these measures evidently serve numerous valid local interests, an argument can be made that these types of laws are directly discriminatory against out-of-state food producers and that, therefore, the laws run afoul of the Dormant Commerce Clause doctrine’s nearly per se prohibition on laws having such discriminatory effects. The doctrine has been interpreted to include exceptions for some facially discriminatory laws, when those laws serve otherwise legitimate state interests and when the ends cannot be reached by any other reasonable means.
Resorting to these exceptions under the Dormant Commerce Clause, however, seems to misconstrue the rights that the Constitution affords the people to govern. This view of the federal government’s powers under the Commerce Clause essentially provides that the people’s powers are limited in the first instance by judicial fiat, with certain popularly ordained actions being acceptable only by the permission of the courts under their implied powers to control commerce. Instead, the people’s rights to enact locally beneficial laws, where those laws are not prohibited by an express constitutional restriction or preempted by congressional enactments, would seem to be protected by the Ninth or Tenth Amendments; these amendments, however, have been interpreted as affording no such rights. Indeed, the Court’s attempt to reinvigorate the rights of the people under the Tenth Amendment in National League of Cities v. Usery was quickly overruled in Garcia v. San Antonio Metropolitan Transit Authority, which rejected the notion that the Court could ever ascertain any reliable defining characteristics of state governments that must be protected from federal regulation.
After its impugning of Usery’s “traditional governmental functions” test for determining which state activities should be protected from federal interference, the Court has since sought to revitalize principles of federalism and the powers of the states to self-govern in the face of seemingly ubiquitous federal power. This trend has included some pulling back from the near-per-se invalidation of discriminatory state laws under the Dormant Commerce Clause, most recently in United Haulers Ass’n v. Oneida–Herkimer Solid Waste Management Authority and Department of Revenue of Kentucky v. Davis. These cases have essentially recognized a governmental exception to Dormant Commerce Clause restrictions, allowing discriminatory treatment when the legislation at issue serves “traditional public functions.”
With the Court’s pullback from previous Dormant Commerce Clause jurisprudence, and especially due to the theories upon which the Court has allowed discriminatory legislation, there exists another, more textually defensible rationale for allowing the enactment of such locally beneficial laws. That rationale is found in Article IV’s Republican Guarantee Clause, which provides that “The United States shall guarantee to every State in this Union a Republican Form of Government.”
Long relegated to “constitutional desuetude,” the Guarantee Clause has experienced a sort of slow revival over the past half century, beginning with the Court’s allowance in Baker v. Carr that cases under the Guarantee Clause were not necessarily nonjusticiable, as had been assumed under the Court’s prior precedents throughout the preceding century. During that pre-Baker period, the Court had determined that any challenge based on the Guarantee Clause presented a nonjusticiable political question whose resolution was dedicated exclusively to the political branches. After Baker’s restatement of the political question test, courts determining whether to allow a Guarantee Clause claim to go forward look to whether the dispute can be resolved judicially without infringing on the powers and duties of the other federal political branches.
The political question doctrine and the Guarantee Clause, generally, also give rise to another, converse implication of the federal government’s potential authority under the Guarantee Clause. This implication is that the affirmative powers granted to the federal sovereign concomitantly require that that government respect the authority of the states, and of the people, to engaged in fundamental republican activities without interference by the federal government where there does not exist a clear constitutional basis for doing so. Under this view, the republican guarantee would thus serve as a limit on the federal judiciary’s attempts to exercise nontextual, implied powers under the Commerce Clause. Where the federal government has not acted according to its express Commerce Clause authority, the Republican Guarantee requires that federal courts refrain from invalidating state legislation unless there exists a textually demonstrable basis upon which the courts may exercise their remedial constitutional authority, such as that found under the Equal Protection or Due Process Clauses or the First Amendment.
This limitation on the federal government is based on a reading of Article IV’s provision that the United States “shall guarantee” states’ republican governments in such a way as to give fuller meaning to that right in the federal government as also bestowing obligations grounded in principles of federalism. Hence, the corollary to the oft-stated affirmative powers of the federal government is that “shall” does not only mean that the federal government may act, but that it must also refrain from acting when doing so would interfere with the states’ development, maintenance, and exercise of local republican government. The critical determination, then, is discerning those governmental actions that fall within the concept of republicanism that is guaranteed to the states and the people.
The Court has provided some guidance in this area, although the entire scope of rights guaranteed within the body of republicanism remains indeterminate. In New York v. United States, for example, the Court discussed a challenge based in part on the Guarantee Clause, and concluded that even if the Guarantee Clause provided limits on what actions the federal government may take vis à vis the states, the incentives at issue in that case did not violate the Clause’s protections. Also, in Gregory v. Ashcroft, the Court explicitly held that the Guarantee Clause constrains the federal government’s ability to interfere with the qualifications established for state governmental officials. The Court made clear that, although Congress may have the power to manipulate such qualifications under its Commerce Clause power, any attempts to exercise that power must be “unmistakably clear,” and that the federal courts must not arrogate to themselves powers to invalidate such fundamental acts of a state government.
The cases adjudicating grievances under the Guarantee Clause illustrate three points. First, after over one hundred years of having been read to be essentially a dead letter of the Constitution, the guarantee is apparently alive and well. Second, these cases show that there are in fact substantive elements of the guarantee that the federal courts can recognize, and that these elements can provide a framework of the types of state governmental activities that must be free from federal interference, absent an “unmistakably clear” constitutional or statutory basis. Third, the Court’s adjudication of these cases shows that the Guarantee Clause could provide a jurisdictional basis upon which states might enact legislation in furtherance of republican governance, much like Congress relies on the Commerce Clause as the jurisdictional basis by which it legislates.
Thus, although the precise content of the republican guarantee is yet undefined, a more robust and textually based interpretation of the Guarantee Clause seems to support broad measures aimed at protecting local agrarian traditions. Thus, local laws protecting and promoting local food systems should be protected from federal judicial invalidation by the guarantee that the people of every state shall be free to exercise a republican government. In comparison to the Court’s decision in Gregory v. Ashcroft, for example, if a state’s establishment of qualifications for its officers is within the guarantee, so too must be the people’s ability, through the republican process, to decide how the populace will be fed and, similarly, how the land of the state will be used. Therefore, under this view of the Guarantee Clause, unless Congress issues a contrary directive governing local food, the republican guarantee would prohibit the federal courts from infringing on the people’s right to engage in an apparently fundamental component of republicanism: utilizing the republican legislative process to protect and promote the production and consumption of local foods.