Robin Feldman and Gideon Schor,
Lochner Revenant: The Dormant Commerce Clause & Extraterritoriality, 16
NYU J.L. & Liberty
Available at: https://repository.uclawsf.edu/faculty_scholarship/1920
During the Lochner era, the Supreme Court, relying on broad inter- pretations of constitutional doctrine, struck down scores of state statutes with an essentially free hand. Today, some federal courts are heading to- wards a new Lochner era, in which numerous state laws regulating health and safety can be invalidated on the thinnest of constitutional grounds. The issues implicate not only a vast amount of national commerce but also the Constitution’s careful balance between federal and state power. Specifically, in two decisions from the late 1980s, the Supreme Court extracted language from a 1935 decision and used that language to fashion a new extraterritoriality principle within dormant Commerce Clause juris- prudence. In the midst of disarray in the circuits, extraterritoriality has now taken on a life of its own. It has been applied by the lower courts to overturn a host of state statutes, including ones related to ads depicting sexual acts with minors, online auctions, anti-spoofing laws (which ensure the number showing on a cell phone is the origin of the call), and the online publication of public officials’ home addresses. With the extraterritoriality principle, the dormant Commerce Clause has now morphed from a narrow anti-discrimi- nation rule into a broad restriction on state sovereignty. Absent Supreme Court intervention, the nation appears to be verging on a new Lochner era. This article unwinds the misinterpretations that are leading the lower courts astray and points the way out of this dangerous path.
NYU Journal of Law & Liberty