The Dormant Commerce Clause, Vegas-Style

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2 Responses

  1. Norman Williams says:

    Contrary to Tuan’s take, I think the district court got it right. The Nevada residence requirement is clearly discriminatory, and I don’t see any legitimate local interest that could not be served by a non-discriminatory alternative. Congress may authorize states to act in ways that otherwise run afoul of the dormant Commerce Clause, see Prudential Ins. v. Benjamin, but the Mann Act does not purport to authorize such state action. Nor does the Mann Act, which only bans the transportation of prostitutes, prohibit the ownership of brothels in other states. As a constitutional matter and for the reasons Tuan gives, Congress could undoubtedly prohibit the interstate receipt of funds from brothels, but it has not done so, and the Mann Act’s clear terms preclude construing it to reach such conduct. And so long as the non-resident brothel owner does not “repatriate” the income from Nevada to Texas, I’m not sure the Texas law could reach him without violating the extraterritoriality principle contained in due process and the dormant commerce clause alike.

  2. Tuan says:

    Norman is right that Congress could legislatively authorize discrimination that would otherwise run afoul of the Court’s dormant commerce clause jurisprudence, and that’s certainly the clearest route for Nye County to go – get Congress to authorize the discrimination. Perhaps it could amend the Mann Act, borrowing liberally from the similar authorization in the McCarran-Ferguson Act.

    Alternatively, as Norman suggests, Congress could always criminalize Nevada prostitution. I don’t imagine it’s a politically popular industry nationally. Nevada is the only state to have legalized it and not even the whole state allows it, just a few rural counties.

    I don’t disagree either that facially discriminatory state laws get rough treatment under the Court’s “virtually” per se unconstitutional approach.

    Yet, it strikes me as passing strange that judicially implied preemption of the code provision by the Commerce Clause could then (potentially) result in judicially implied obstacle preemption of the requisite revision to the code provision by the Mann Act. Implied obstacle preemption is more woolly than express preemption and congressional “purposes and objectives” in enacting the Mann Act may prove broader than its terms.

    I’d be curious to know what Texas thinks about this activity and whether it (and any of the other 48 states) would join as amici if/when this is appealed to the Ninth Circuit.