In 2007 the State of Minnesota passed a law restricting imports of fossil-fuel electricity into their state. Ostensibly the law was motivated by environmentalism, though it does nothing to address things like coal-fired power plants based in Minnesota.
Anyway, the State of North Dakota sued Minnesota over the law because it is blatantly unconstitutional. Article 1, Section 8, Clause 3 of the U.S. Constitution gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The 10th amendment states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Because the Constitution specifically assigns the regulation of commerce “among the several states” to the federal government, and because the 10th amendment denies the states powers assigned to the federal government, states like Minnesota cannot pass laws regulating interstate commerce.
“North Dakota successfully argued in federal district court that the law illegally regulates out-of-state utilities in violation of the U.S. Constitution’s Commerce Clause,” reports the Minneapolis Star Tribune, but the case has been appealed. Today the 8th Circuit heard oral arguments in the case and, not surprisingly, an attorney for the State of Minnesota argued that their law is not an attempt to regulate interstate commerce.
But one of the judges on the appeals panel didn’t seem to be buying it:
Alethea Huyser, an assistant Minnesota attorney general who argued before the appeals panel, said the state law “does not and could not” regulate the power grid. That quickly brought the first pointed inquiry from [Judge] James Loken.
“Yes it does,” he said, pressing for response.
Remember that Minnesota is the only state in the union with a law like this, so this case isn’t just about regional fossil fuel interests in North Dakota. This case is of national import. If the courts were to open the door to state laws restricting what sort of power can be sold on the national power grid we would no doubt see a lot of states follow Minnesota’s lead to squeeze fossil fuel energy companies operating outside of their jurisdictions.
What would ensue would be sort of interstate trade chaos that the Commerce Clause was created to prevent. The last thing the framers of the constitution wanted was trade wars among the various states.
It is foolish to try and guess how a court will rule based on the sort of questions judges ask during these arguments, but we can take some solace that at least one judge on the appeals court seems to get it. If the court sides with Minnesota we’re going to be left with a situation where the Commerce Clause can justify everything from the federal “war on drugs” to how many pepperonis have to be on a pizza to be sold across state lines, but not prohibit state regulation of interstate commerce that is specifically assigned to Congress by the Constitution.