TikTok, Montana, and the Dormant Commerce Clause

 Montana has banned TikTok, which is suing.

119. The Commerce Clause of the U.S. Constitution grants Congress the power to regulate commerce with foreign Nations, and among the several States. U.S. Const. art. 1, § 8, cl. 3. While the Commerce Clause is framed by its text [as] an affirmative grant ofpower to Congress , the so-called Dormant component of the Clause has long been recognized as a self-executing limitation ofthe States to enact laws imposing substantial burdens on [interstate] commerce ." South-Central Timber Dev.,Inc. v.Wunnicke ,467 U.S.82 ,87 (1984).

 120. The TikTok Ban imposes substantial burdens on interstate commerce inviolation of the Commerce Clause and other structural provisions ofthe Constitution by prohibiting Plaintiff from operating TikTok in Montana and penalizing Plaintiff any time a user in Montana accesses TikTok or is offered the ability to access or download TikTok in the State . The TikTok Ban is not limited to Montana residents ; it applies to anyone in the State ,including those visiting or merely passing through for work.

121. Substantial burdens on interstate commerce generally result from inconsistent regulation ofactivities that are inherently national or require a uniform system of regulation. Bernstein v.Virgin Am.,Inc.,3 F.4th 1127, 1135 (9th Cir. 2021) (quoting Nat'lAss'n of Optometrists & Opticians v. Harris,682 F.3d 1144, 1148 (9th Cir.2012)).

122. Plaintiff's operation of TikTok ,an application used by over 150million users in the United States ,including in every State, is inherently national in scope and requires a uniform system of regulation, not one subject to the policy decisions offifty separate States.

 

 

Checks and Balances in Action

Madison in Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

During the Obama years, Republican state officials sued to stop administration policies.  Democratic officials  have been doing the same since 2017.

 An editorial in The Daily Sentinel (Grand Junction, CO):

 Montana’s Democratic Gov. Steve Bullock hit the nail on the head with a tweet following a federal judge’s ruling Friday that William Perry Pendley has been serving unlawfully as the acting director of the Bureau of Land Management.

“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Bullock wrote.

...

U.S. District Judge Brian Morris said Pendley has served as the acting director of the BLM unlawfully for 424 days without being confirmed to the post by the U.S. Senate.

Pendley’s “ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act),” Morris wrote in his opinion. “Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”

...

“Under Federal Defendants’ theory, a President could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through Cabinet Secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario.”

The administration’s theory “flies in the face of the constitutional design.”

An Interior spokesman told CNN the administration will appeal immediately. In the meantime, Morris gave both sides of the case 10 days to file briefs about which of Pendley’s order must be vacated.

We all intuitively know that someone exercising the power of BLM director without Senate confirmation doesn’t square with the law.

Witnessing in action the checks and balances design of our Constitution is a thing of beauty.

Ever-Growing US House Districts

Drew DeSilver at Pew:

The U.S. House of Representatives has one voting member for every 747,000 or so Americans. That’s by far the highest population-to-representative ratio among a peer group of industrialized democracies, and the highest it’s been in U.S. history. And with the size of the House capped by law and the country’s population continually growing, the representation ratio likely will only get bigger.

In the century-plus since the number of House seats first reached its current total of 435 (excluding nonvoting delegates), the representation ratio has more than tripled – from one representative for every 209,447 people in 1910 to one for every 747,184 as of last year.

That ratio, mind you, is for the nation as a whole. The ratios for individual states vary considerably, mainly because of the House’s fixed size and the Constitution’s requirement that each state, no matter its population, have at least one representative. Currently, Montana’s 1,050,493 people have just one House member; Rhode Island has slightly more people (1,059,639), but that’s enough to give it two representatives – one for every 529,820 Rhode Islanders.

...

There have been occasional proposals to add more seats to the House to reflect population growth. One is the so-called “Wyoming Rule,” which would make the population of the smallest state (currently Wyoming) the basis for the representation ratio. Depending on which variant of that rule were adopted, the House would have had 545 to 547 members following the 2010 census.

However, a recent Pew Research Center survey found limited public support for adding new House seats. Only 28% of Americans said the House should be expanded, versus 51% who said it should remain at 435 members. When historical context was added to the question, support for expansion rose a bit, to 34%, with the additional support coming mainly from Democrats.

 The House’s hefty representation ratio makes the United States an outlier among its peers. Our research finds that the U.S. ratio is the highest among the 35 nations in the Organization for Economic Cooperation and Development, most of them highly developed, democratic states.

Nullification

Associated Press reports:

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver's licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said "no" to the feds again and again - passing states' rights measures on all four subjects examined by the AP - despite questions about whether their "no" carries any legal significance.

"It seems that there has been an uptick in nullification efforts from both the left and the right," said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet "the law is clear - the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn't like those laws," Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn't stopped some states from flouting those federal laws - sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments - despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama's administration has made it known to federal prosecutors that it wasn't worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama's 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.