With the debate in the Wynn case over the Dormant Commerce Clause, Michael Greve has once again criticized originalists for their views on the matter. Michael likes the Dormant Commerce Clause. As a policy matter, so do I. What’s not to like about a doctrine that prohibits or restricts states from engaging in protectionist and other similar actions?
But I am not so sure how important the doctrine really is as a practical matter. Unlike other constitutional law doctrines, that of the Dormant Commerce Clause does not restrict Congress. If Congress wants to authorize states to engage in protectionist legislation, it can do so. And Congress has, most famously in the case of insurance with the McCarran-Ferguson Act.