Federal/State Interface

Around the turn of the century, Justice Brown in Covington & C. Bridge Co, v. Com. of Kentucky, 154 U.S. 204 (1894,) described the Court's understanding of the interface of the two powers and the concept of the "dormant" Commerce power:

"The power of congress over commerce between the states, and the corresponding power of individual states over such commerce, have been the subject of such frequent adjudication in this court, and the relative powers of congress and the states with respect thereto are so well defined, that each case, as it arises, must be determined upon principles already settled, as falling on one side or the other of the line of demarcation between the powers belonging exclusively to congress, and those in which the action of the state may be concurrent. The adjudications of this court with respect to the power of the states over the general subject of commerce are divisible into three classes: First, those in which the power of the state is exclusive; second, those in which the states may act in the absence of legislation by congress; third, those in which the action of congress is exclusive, and the states cannot interfere at all.

"The first class, including all those wherein the states have plenary power, and congress has no right to interfere, concern the strictly internal commerce of the state, and, while the regulations of the state may affect interstate commerce indirectly, their bearing upon it is so remote that it cannot be termed in any just sense an interference. Under this power, the states may authorize the construction of highways, turnpikes, railways, and canals between points in the same state, and regulate the tolls for the use of the same (Baltimore & O. R. Co. v. Maryland, 21 Wall. 456), and may authorize the building of bridges over nonnavigable streams, and otherwise regulate the navigation of the strictly internal waters of the state, - such as do not, by themselves or by connection with other waters, form a continuous highway over which commerce is or may be carried on with other states or foreign countries (Veazie v. Moor, 14 How. 568; The Montello, 11 Wall. 411, 20 Wall. 430). This is true notwithstanding the fact that the goods or passengers carried or traveling over such highway between points in the same state may ultimately be destined for other states, and, to a slight extent, the state regulations may be said to interfere with interstate commerce. The states may also exact a bonus, or even a portion of the earnings of such corporation, as a condition to the granting of its charter. Society v. Coite, 6 Wall. 594; Providing Inst. v. Massachusetts, Id. 611; Hamilton Manuf'g Co. v. Massachusetts, Id. 632; Baltimore & O. R. Co. v. Maryland, 21 Wall. 456; Ashley v. Ryan, 153 U. S.-, 14 Sup. Ct. 865.

"Congress has no power to interfere with police regulations relating exclusively to the internal trade of the states (U. S. v. De Witt, 9 Wall. 41; Patterson v. Kentucky, 97 U.S. 501, nor can it, by exacting a tax for carrying on a certain business, thereby authorize such business to be carried on within the limits of a state (License Tax Cases, 5 Wall. 462). The remarks of the chief justice in this case contain the substance of the whole doctrine:

'Over this [the internal] commerce and trade congress has no power of regulation nor any direct control. This power belongs exclusively to the states. No interference by congress with the business of citizens transacted within a state is warranted by the constitution, except such as is strictly incidental to the exercise of powers clearly granted to the legislature. The power to authorize a business within a state is plainly repugnant to the exclusive power of the state over the same subject.'

"[W]ithin the second class of cases-those of what may be termed concurrent jurisdiction - are embraced laws for the regulation of pilots ( Cooley v. Board, 12 How. 299; Steamship Co. v. Joliffe, 2 Wall. 450; Ex parte McNeil, 13 Wall. 236; Wilson v. McNamee, 102 U.S. 572; quarantine and inspection laws and the policing of harbors (Gibbons v. Ogden, 9 Wheat. 1, 203; City of New York v. Miln, 11 Pet. 102; Turner v. Maryland, 107 U.S. 38, 2 Sup. Ct. 44; Morgan's Louisiana & T. R. & S. S. Co. v. Board of Health, 118 U.S. 455, 6 Sup. Ct. 1114); the improvement of navigable channels (Mobile Co. v. Kimball, 102 U.S. 691; Escanaba & L. M. Transp. Co. v. Chicago, 107 U.S. 678, 2 Sup. Ct. 185; Huse v. Glover, 119 U.S. 543, 7 Sup. Ct. 313); the regulation of wharves, piers, and docks (Cannon v. New Orleans, 20 Wall. 577; Keokuk Northern Line Packet Co. v. Keokuk, 95 U.S. 80; Northwestern Union Packet Co. v. St. Louis, 100 U.S. 423; Cincinnati, etc., Packet Co. v. Catlettsburg, 105 U.S. 559; Parkersburg, etc., Transp. Co. v. Parkersburg, 107 U.S. 691, 2 Sup. Ct. 87; Ouachita Packet Co. v. Aiken, 121 U.S. 444, 7 Sup. Ct. 907); the construction of dams and bridges across the navigable waters of a state (Willson v. Marsh Co., 2 Pet. 245; Cardwell v. Bridge Co., 113 U.S. 205, 5 Sup. Ct. 423; Pound v. Turck, 95 U.S. 459, and the establishment of ferries (Conway v. Taylor, 1 Black, 603).

"Of this class of cases it was said by Mr. Justice Curtis in Cooley v. Board, 12 How 299, 318: 'If it were admitted that the existence of this power in congress, like the power of taxation, is compatible with the existence of a similar power in the states, then it would be in conformity with the contemporary exposition of the constitution and with the judicial construction given from time to time by this court, after the most deliberate consideration, to hold that the mere grant of such a power to congress did not imply a prohibition on the states to exercise the same power; that it is not the mere existence of such a power, but its exercise by congress, which may be incompatible with the exercise of the same power by the states, and that the states may legislate in the absence of congressional regulations.' See, also, Sturgis v. Crowninshield, 4 Wheat. 192, 193. But, even in the matter of building a bridge, if congress chooses to act, its action necessarily supersedes the action of the state. Pennsylvania v. Wheeling & B. Bridge Co., 18 How. 421. As matter of fact, the building of bridges over waters dividing two states is now usually done by congressional sanction. Under this power the state may also tax the instruments of interstate commerce as it taxes other similar property, provided such tax be not laid upon the commerce itself.

"But wherever such laws, instead of being of a local nature and affecting interstate commerce but incidentally, are national in their character, the nonaction of congress indicates its will that such commerce shall be free and untrammeled, and the case falls within the third class, - of those laws where in the jurisdiction of congress is exclusive. Brown v. Houston, 114 U.S. 622, 5 Sup. Ct. 1091; Bowman v. Railway Co., 125 U.S. 456, 8 Sup. Ct. 689, 1062. Subject to the exceptions above specified, as belonging to the first and second classes, the states have no right to impose restrictions, either by way of taxation, discrimination, or regulation, upon commerce between the states..."