Vanderbilt Law Review


Dan T. Coenen

First Page



The law takes shape as great principles collide in the context of concrete cases. In the field of constitutional law, the task of reconciling key precepts falls, of necessity, to the Supreme Court. Indeed, much of the Court's work involves delineating the borders of competing constitutional principles that the Court itself has created.

This Article considers the interplay of two central tenets of the Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator."' The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."

Part II of this Article shows why these doctrinal pronouncements stand in an unsteady tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon, when two dissenters attacked the majority for overriding the market-participant exception by outlawing state discrimination in fixing public-landfill fees. Part III explains why the dissenters' reading of Oregon Waste Systems was misguided. Although that decision pointed up the long-latent strain between the Court's market-participant and user-fee cases, it did not resolve-in the public landfill context or otherwise-the ostensible contradiction created by these competing bodies of law.

Part IV explains how this doctrinal conflict could emerge. For years the Court has treated state tax cases and state regulation cases as falling into distinct analytical categories for dormant commerce clause purposes. Part IV shows how the creation of this doctrinal dichotomy may have led the Court to gloss over the intrinsic incompatibility of its broadly stated market-participant and user-fee rules.

Finally, Part V offers what the Supreme Court has not yet provided: a synthesis of these clashing principles that comports with both existing caselaw and sound dormant commerce clause poicy. Close inspection reveals that, although the Court has declared the user-fee anti-discrimination rule in categorical terms, it actually has applied that rule only to state charges associated with roads, airports, and other channels of interstate movement. These decisions are correct, according to the synthesis proposed in this Article, because of the compelling need to safeguard access to the essential avenues of inter-state trade. This channels-of-commerce principle, however, does not dictate that states must make public landfills-as well as many other government facilities unconnected with interstate move- in the absence of preemptive federal legislation. Under this rule, for example, a state may not inhibit sales by traveling representatives of nonresident firms to give a competitive edge to local retailers. Likewise, a state may not impose a greater tax on nonresident buyers of private landfill services than it imposes on similarly situated residents."