[Jack Goldsmith and I will have this article out in the Texas Law Review early next year, and I'm serializing it here. There is still plenty of time for editing, so we'd love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]
Let's begin with a few words about the Dormant Commerce Clause and how it interacts with federalism principles.
The U.S. Constitution presumptively preserves state authority to control what happens within state borders, especially state power to protect citizens and residents from what legislators or voters perceive as harms. This state "police power" to regulate "health, safety, and morals" is implicitly acknowledged by the Constitution's structure of enumerated powers, and by the Tenth Amendment.[1]
