Cooley v. Board of Wardens and its Nineteenth‐Century Legacy

Abstract

According to Charles Warren, “it was not until…the case of Cooley v. Port Wardens was decided in 1852, that a lawyer could advise a client with any degree of safety as to the validity of a State law having any connection with commerce between the States.”1 Indeed, nineteenth-century Commerce Clause doctrine in the Supreme Court can neatly be divided into two periods: before and after Cooley v. Board of Wardens.2 Prior to that decision, the Court never directly answered the divisive question of whether states could regulate interstate commerce in the absence of congressional action. The Constitution, in Art. I, Sec. 8, Cl. 3, clearly empowers Congress to “regulate commerce…among the several states,” but the Constitution is silent about state regulation of interstate commerce. Under Chief Justice John Marshall's leadership, the Court had invalidated state laws that were found to be in conflict with a federal statute enacted pursuant to the Commerce Clause.3 However, Marshall-era opinions had seemed to leave room for state regulation of certain matters applicable to interstate commerce, such as the pilotage of ships and the inspection of goods. By 1849, in a pair of cases called the Passenger Cases, the members of the Court read the Marshall precedents quite differently.4 In these cases, a slim Majority of Justices invalidated New York and Massachusetts taxes on incoming ship passengers, but a majority failed to unify around the principle that the federal government had exclusive regulatory rights over such interstate commerce.5 In the case, eight of the nine Justices wrote separate opinions. Only three members of the Court concurred that the federal government had exclusive power over interstate commerce. Three years later, in Cooley, the Court attempted to reconcile the discordant prior opinions on state action and the Commerce Clause into something resembling a workable doctrinal framework.6 Cooley’s ultimate principle—that the federal government has exclusive regulatory rights over at least some portions of interstate commerce—eventually became the greatest doctrinal enabler of judicial review of state laws in the nineteenth century. As for its staying power, the Court recently made clear in a 2018 opinion that Cooley continues to serve as the baseline for analysis of state powers relative to the Commerce Clause.7 Thus, the Cooley decision has an enduring place in the Court's history. The post-Cooley behavior of the Supreme Court is the primary focus of this article, which seeks to answer the following questions: How, if at all, was Cooley applied in subsequent cases of purported state regulations of interstate commerce? How often did post-Cooley Courts use the federal exclusiveness principle to invalidate state laws? And when, if at all, was the Court most likely to invoke the principle of federal exclusiveness? The general answer is that by the last decade of the nineteenth century, the Court had realized a potency in Cooley that had not been obvious at the time the case was decided. While Cooley was decided—and then initially applied—by Jacksonian Justices who mainly wanted to empower states, ironically Cooley's major legacy was created by their Republican successors who sought to disempower states in order to protect commerce. The findings of this study are based upon a close evaluation of all of the Court's Commerce Clause cases decided immediately after the Cooley decision until the reorganization of the federal judiciary that occurred in 1891—just under fifty years.8 The main insight from the present analysis is that the “career” of Cooley federal exclusiveness can be broken down into three distinct periods: the Twilight of the State-Centric System (1852–1872); the period of Emerging Nationalism (1873–1885), and the period of Nationalism (1886–1891). The Cooley case itself involved a Pennsylvania law that required every ship entering and exiting the port of Philadelphia to make a report to the port's warden and to use the services of a local pilot. Justice Benjamin R. Curtis, writing for the Court's five-member majority, found that the pilotage requirement involved a state regulation of interstate commerce.8 However, he found the regulation to be compatible with existing federal statutes concerning the same commerce. According to Justice Curtis, the pilotage of ports of the United States, albeit a matter affecting interstate commerce, is of the type of regulation that is local in nature, and as such only affects the local incidents of interstate navigation. Such a regulation, the Court concluded, may exist concurrently with federal regulation of the same interstate commerce. To evidence this, Curtis pointed to a federal statute authorizing state and local regulation of the subject of pilots.9 However, he continued, certain other incidents of interstate commerce “are in their nature national, or admit only of one uniform system, or plan of regulation, [and] may justly be said to be of such a nature as to require exclusive legislation by Congress.”10 State impositions on these incidents of interstate commerce are not permitted, even if Congress has not acted. Curtis expressly declined to offer an example of what things might be “within the exclusive control of Congress” or “what may be regulated by the States in the absence of all congressional legislation.”11 But he created the basic distinction between the local and national incidents of interstate commerce that would endure. Justice Curtis was the newest Justice on the Court at the time of Cooley. Unlike most of his peers, he was new to the constitutional questions at issue. Being free from the Court's contentiousness over this issue in the past, he was in a strong position to speak for the Court in Cooley. His fashioning of a truly pragmatic doctrine on behalf of the Court contributes to Curtis's reputation, in Bernard Schwartz's assessment, as the second greatest Justice of the Taney Court after the Chief Justice himself.12 Appointed by Millard Fillmore, Benjamin Curtis was one of the few Whig Justices to serve on the Supreme Court. In 1852 he wrote the Court's compromise majority opinion in Cooley v. Board of Wardens. Justice Peter V. Daniel concurred separately. He believed that the Pennsylvania law was a proper exercise of the state's exclusive police power—a power having no relation to the Commerce Clause and, therefore, that did not depend upon the assent (or silence) of Congress.13 Daniel's view—popular among states’ rights Jacksonians at the time—was that any measure protecting public health and safety (like, he believed, the pilotage requirements at issue) fell within the exclusive power of a state. But Daniel went further than this. Even when it came to genuine regulations of interstate commerce, according to Justice Daniel, state regulatory authority was fully coextensive with that of Congress. For Daniel, a state law “regulating commerce” could only be deemed invalid when Congress acted to preempt it using its lawful powers, not on the strength of congressional silence. Justice John McLean, joined by Justice James M. Wayne, dissented, arguing the exact opposite of the Daniel position on interstate commerce: that states could never regulate interstate and international commerce. McLean also disagreed with the majority's holding concerning the implication of federal authorization of state pilotage regulations.14 For the dissenters, the Pennsylvania law at issue was a pure regulation of interstate commerce that was within exclusive federal power and beyond any state power. In Cooley, the Court provided something that had been lacking before: doctrine on state regulation of commerce that could have applicability in almost every conceivable case. The doctrine was flexible, not dogmatic. The Court in Cooley supplied a framework of analysis for state imposition on interstate commerce cases that could be applied across a range of potential regulatory circumstances. Since interstate commerce is so vast, the Court reasoned, commerce can give rise to both local and national regulatory needs. As Schwartz has claimed, the flexibility of the Cooley framework allowed the law to evolve to suit the needs of the nation.15 Conceptually, the Cooley decision could be read at the time as authorizing four possible judicial determinations about a state's imposition on purported interstate commerce. In Outcome 1, the state's action could be found not to be a regulation of interstate commerce. If the Court so found, the state imposition should be upheld as a proper exercise of the police power that the state exclusively possesses—a power that exists to protect the state's public, not to regulate commerce per se. This was how Justice Daniel characterized the pilotage law at issue in Cooley in his concurring opinion. This is the principle of state exclusiveness. However, under Cooley, a future Court may be warranted in finding that a state law was more than a simple police measure. If the Court found a state law to involve a true regulation of interstate commerce, as it did in Cooley, three possible determinations flow from this, under Cooley. In Outcome 2, the thing or activity regulated is interstate commerce, but the regulation only touches upon the local incidents of interstate commerce. The state, in such a case, has a concurrent right with the federal government to regulate this aspect of interstate commerce. If this finding is made, the law should be upheld, as the Pennsylvania law ultimately was in Cooley. Alternatively, in Outcome 3, a future Court may find that the thing or activity regulated is interstate commerce, and that the state regulation touches upon an aspect of interstate commerce that is best handled by uniform national treatment even if it has not been yet regulated by Congress. If this finding is made—and the Cooley majority made it clear that this finding may be warranted in a future case—the state law must be invalidated. This was the two Cooley dissenters’ view of the Pennsylvania law. This is the principle of federal exclusiveness. Lastly, in Outcome 4, the Court could find that the thing or activity regulated is interstate commerce, and the thing or activity has been regulated by the federal government in such a way as to preclude the specific state and local regulation. In such a case, the state law should be invalidated. Though the expression does not appear to have been used in the context of the Cooley decision, this idea would come to be known as the principle of statutory preemption. This possible outcome is evident in the Cooley majority's approach, whereby the Justices reviewed the compatibility between the state and federal law in the case and deemed that there was no incompatibility, thus no preemption. Often, constitutional scholars have referred to this Cooley framework as the doctrine of “selective exclusiveness.”16 If the Court rests on state exclusiveness, it means that the Court has determined that the imposition on commerce may be made exclusively by a state in the exercise of its general police power; if on federal exclusiveness, exclusively by the federal government under its power to regulate the national incidents of interstate commerce. If the Court finds that there is a concurrent regulatory right over a certain aspect of commerce, neither level of government has the exclusive right to exercise the regulatory power in question—states may regulate the commerce up until the point that Congress forecloses on the states by national legislation. Statutory preemption hearkens back to the Marshall Court. It acknowledges the Constitution's principle of national supremacy: that existing federal regulation of interstate commerce will be supreme over any conflicting regulation by a state. In the Cooley case, the Court found that while the requirements placed upon incoming and exiting vessels affected interstate commerce, state and local pilotage requirements of the type at issue had long been permitted. This longstanding permission suggests that each state can adopt its own localized pilotage regulations—that is, to suit the unique circumstances of its local ports—without greatly burdening interstate commerce, up until the point of preemptive federal action. While only intimated by the Court but not taken, statutory preemption was based upon well-established principles of national supremacy dating back to the Marshall Court's landmark decision in Gibbons v. Ogden, where Chief Justice Marshall, in dicta, suggested that for some cases a concurrent regulatory right is a possibility.17 While federal preemption had often been a means of escape for the Marshall Court, state exclusiveness had often been a means of escape for the Taney Court, which often upheld contested state actions on the theory that the action was a state police measure, not a regulation of commerce.18 The Cooley principle of federal exclusiveness points to some aspects of interstate commerce for which the national government has the exclusive option to regulate or not. Federal exclusiveness had long been contentious as a textual matter: does the mere existence of a constitutional grant of federal regulatory power over interstate commerce mean that states were forbidden from exercising any power over such commerce? The question had never been squarely decided by the Marshall Court; some of the Justices in their separate opinions held to federal exclusiveness in the Court's decision two years prior to Cooley in the Passenger Cases, but no real consensus had emerged. In any event, whether warranted by the Passenger Cases precedent or not, in Cooley for the first time the Court majority clearly extended an invitation to future Courts to invalidate state laws on the principle of federal exclusiveness. The Cooley majority opinion has never been challenged or repudiated by a subsequent Court. As it turned out, none of the Cooley Justices who supported federal exclusiveness were ever able to use the principle to invalidate a state law. Over twenty years would pass before a Court majority would clearly invoke the principle of federal exclusiveness against a state law. By then, every member of the Cooley Court was gone, the nation had undergone the throes of the Civil War, and a new political party had been born. Cooley was decided by a Court of eight Jacksonian Justices in an era dominated by a sectional division between pro- and anti-slavery states.19 The Jacksonian Justices consisted of Court members appointed by President Andrew Jackson (Taney, McLean, Wayne, and Catron) and Jackson's Vice President and successor, Van Buren (McKinley and Daniel).20 John Tyler, a nominal Whig who supported states’ rights as strongly as any Jacksonian Democrat, appointed Justice Nelson, and his Jacksonian Democratic successor Polk appointed Justice Grier.21 Justice Curtis, the author of the Cooley opinion, was the Court's sole Whig—an appointee of Whig president Millard Fillmore.22 Fillmore was as equivocal on the issue of federal power versus states’ rights as his appointee's majority opinion had been.23 Except for Curtis, all the Justices who decided Cooley were Jacksonian Democrats. Above is the courtroom where Taney, McLean, Wayne, Catron, McKinley, Daniel, Nelson, and Grier heard arguments in the case. While the Court changed composition shortly after Cooley, Justices appointed by Democratic Presidents dominated the Court during the Civil War era through the remainder of the Chief Justiceship of Taney to 1864, and they continued to hold a majority for most of Chief Justice Chase's tenure (1865–1873). Judicial decision-making during this time looked Jacksonian until about 1870, at which time a Republican majority was in place.24 While Jacksonians existed in every region, they were generally on the Southern side of the sectional divide.25 They uniformly supported states’ rights in ways that protected slavery, and traditionally wanted to permit any other kind of state action if such was at all defensible and—as in the 1830s cases of Cherokee Removal—at times indefensible. Jacksonian ideology, perhaps best represented by Chief Justice Taney himself, had long held to concurrent state authority and to the principles of dual state and federal sovereigns. Taney thought that state power to regulate interstate commerce was completely coextensive with the power of Congress over commerce, up until the point that state action was explicitly foreclosed by Congress.26 That is to say, any limitations on state power had to be by virtue of a positive constitutional provision or statutory enactment—some express denial of state authority found in a valid federal law or the Constitution itself. Absent some explicit denial, the state's power should be upheld by the Court. Jacksonian ideology further held that the preemptive power of the federal government over states was limited simply because the powers of the federal government were to be construed strictly. Certainly, constitutionally proper federal enactments were supreme over state power per the Constitution's Article Six (hence, most Jacksonians’ rejection of nullification), but federal power was not, in itself, seen as broad in its scope. Just as state powers should be construed broadly, the enumerated and implied powers of the federal government should be construed strictly.27 With Jacksonians in control of one or both chambers of Congress for all but two years (1841–1843) between President Jackson's first election and the Civil War, there were very few congressional enactments that pushed the limit of federal constitutional power, with the consequence that the scope of the powers of Congress was not judicially addressed.28 In the rare instance that a judicial test came, as in the Dred Scott decision of 1857, federal power was restricted. As Gerard Magliocca notes, the ultimate opinion of federal power in Jacksonian America came in the form of presidential veto addresses and actions, not Supreme Court opinions.29 President Jackson himself, in his Maysville Road Veto (1830) and then again in his Bank Veto (1832), denied that the powers of Congress could be construed so broadly as to authorize the building of a road within one state or the creation of the Bank of the United States, respectively.30 Hence, the federal union of the Jacksonians was state centric: while the union itself was not destructible by any state, regulatory power within the union was presumptively vested in the level of government closest to the people. A question arises: why would three Jacksonian Justices in the majority in Cooley—Justices Taney, McKinley, and Catron—agree to a decision that enshrines into constitutional law the principle of federal exclusiveness? Carl Swisher, the foremost historian of the Taney Court, has suggested that the states’ rights Jacksonians would have gladly taken the bargain involved in Cooley.31 In exchange for language supportive of the principle of federal exclusiveness that would secure the support of the Court's relative nationalists like Curtis, McLean, and Wayne, the states’ rights Justices received an actual decision upholding the practice of state regulation of interstate commerce. Just as later Justices would come to see Cooley in light of the opening it gave to federal exclusiveness, Jacksonians of the time embraced Cooley for its actual holding that a state may regulate potentially substantial portions of interstate commerce. Consistent with Swisher's theory about Cooley, the subsequent behavior of the Jacksonian Court showed that the more immediately consequential part of Cooley was the idea that state regulation of interstate commerce can in many—perhaps most—cases be concurrent with federal power. Furthermore, the subsequent behavior of the Taney and Chase Courts indicated that the federal exclusiveness language in Cooley was, indeed, an empty promise made by the states’ rights Justices on the Cooley Court. In the two decades after Cooley, with Jacksonian Justices solidly in the majority on the Court, the Court issued twenty-two decisions concerning states’ rights over interstate commerce. Almost all of the cases dealt with the issues that had long come before the Court. Primarily, they revolved around the right of a vessel to navigate the waters of the United States free of assessments and regulatory requirements created by a state. Despite all of the turmoil of the Civil War era, the nature of the cases had not changed very much since the time of Chief Justice Marshall. And neither, as it turned out, had the nature of the answers. On the surface, it may appear that in the first two decades after Cooley the Court was relatively aggressive in imposing limitations on state power. In nine of the twenty-two cases, the Court invalidated the challenged state or local law.32 Two of these invalidations were statutory preemption cases, as the challenged state laws were found to be in conflict with a particular federal law.33 In these two cases, the Court relied on precedents that predated Cooley, given that Cooley itself had not been resolved on this ground. None of the seven other invalidations in this period were pure federal exclusiveness cases stemming from Cooley, however. In no case did the Court explicitly rest its decision on the federal exclusiveness principle.34 The Court appeared careful to avoid this fraught question in the context of national crises in the period over slavery, secession, war, and Reconstruction. Or perhaps, as has been suggested by Carl Swisher and given the obvious bargain involved in the Cooley holding, no majority of Jacksonian Justices was sincerely supportive of the principle to begin with.35 As long as Jacksonians dominated the Court, federal exclusiveness was not a viable principle in American constitutional law. The Court failed even to cite Cooley in any of its invalidating decisions, although a state's power over interstate commerce was plainly at issue in all of them. In voiding a state or local law, the Court applied another part of the Constitution that limited state power even when it could have opted for federal exclusiveness. For example, in Almy v. California and later in Low v. Austin, the Court found that a state tax on ships’ bills of lading and a state tax on imports, respectively, violated the prohibition on state imposts on imports or exports under Article One, Section Ten, not the Commerce Clause.36 Similarly, the invalidation of the state law in the State Tonnage Tax Cases involved impermissible taxes on tonnage under Article One, not impermissible taxes on interstate or international commerce.37 In addition to these express constitutional limitations, the Court also used novel rationales to invalidate laws rather than address the federal exclusiveness implications of them. In Crandall v. Nevada, the Court gestured toward Cooley by expressly noting that a tax on people exiting the state “does not itself institute any regulation of commerce of a national character, or which has a uniform operation over the whole country,” but instead found that the tax unconstitutionally frustrated the military necessities of the federal government and violated the right of a U.S. citizen, whatever his state, to live under a common national government.38 This was too much for the two dissenters. Justice Clifford, joined by Chief Justice Chase, wrote separately to express the view that the tax was also “inconsistent with the power conferred upon Congress to regulate commerce among the several States….”39 Justice Clifford was the first post-Cooley Justice appointed by a Democratic President (Buchanan) to find that federal exclusiveness should invalidate a state law. The Court invalidated a city tax on ferry boats in St. Louis v. The Ferry Company because it found that the tax had extraterritorial application and was, therefore, “beyond the jurisdiction of the authorities by which the taxes were assessed.”40 As it had in Crandall v. Nevada, the Court used a novel rationale to invalidate a plainly unconstitutional state law in order to avoid the issue of federal exclusiveness: specifically in the Ferry Company case, to interpret state-enabling legislation to forbid extraterritorial taxation. Despite the fact that the Ferry Company had argued (“ably and learnedly,” according to the Court) that the tax was an improper burden on interstate commerce, the Court expressly declined to offer an opinion on the issue.41 Andrew Johnson has been called the last Jacksonian President.42 With the election of his successor, Ulysses S. Grant, to the presidency in 1868, a period of sixteen years of uninterrupted Republican control of the presidency began. As Grant appointed more Republicans to the Court, a division on the Court between the holdover Jacksonian Democrats and the newcomer Republican Justices began to appear. In 1871, in Ward v. Maryland, the Court majority found that a tax levied against out-of-state traveling salesmen violated the privileges and immunities of out-of-state residents.43 However, in making this determination, the Court avoided the clear interstate commerce implications of the law in Ward so much that Justice Bradley, a Republican and the Court's newest member, authored a concurrence in which he offered that the tax also, in his judgment, violated the Commerce Clause. Bradley argued that the tax discriminated not just against out-of-state sellers but out-of-state goods, meaning that even if the tax had applied to resident sellers of out-of-state goods it would violate the Commerce Clause.44 At its most pro-national, the Court's basis for invalidation involved a finding of a “hybrid” constitutional violation: federal exclusiveness as well as some other more positive constitutional or statutory prohibition. For instance, in Steamship Co. v. Portwardens, without invoking Cooley, the Court found the state law to be an impermissible state regulation of foreign commerce as well as an unconstitutional duty on tonnage.45 What is clear from the cases is that if the Court majority had any basis for invalidating a law clearly burdening interstate commerce besides federal exclusiveness it seized upon it—to the point of simply inventing constitutional guarantees in Crandall or by practicing constitutional avoidance in the Ferry Company case. To the extent these decisions further developed the Cooley principle of federal exclusiveness as a restriction on state laws, they showed how deliberate the Court could be in avoiding such a finding. While it goes too far to suggest that the Court abandoned the Cooley framework during the first two decades, the Court appears to have operated not just within the framework but often alongside it. It is clear that the Court used Cooley’s doctrine to empower states, but not to disempower them. The Court was willing to disempower states on different constitutional theories, just not federal exclusiveness. According to David Currie, “Cooley's dictum finally established that the commerce clause sometimes limited state power. When Taney died in 1864, however, no one could yet say confidently that the Court had ever found an instance in which it did.”46 It was merely dictum for a long time. Almost 60% of the Court's interstate commerce decisions between 1852 and 1872 were decided in favor of the state. The Court's most likely decision in any such case (36.3%) was to resolve it in favor of the state on Cooley's state exclusiveness basis. In these cases, the challenged states’ laws were held to be within the exclusive state sphere of action—actions found not to “regulate” or even affect interstate commerce. This tendency resembles what is generally understood about the Taney Court and demonstrates the persistence of the Jacksonian view of interstate commerce even into the 1870s. In this view, states are the nation's principal policy-making actors, even in matters seemingly entrusted to Congress. States are presumptively empowered to act unless some explicit legal prohibition is placed upon them. This explains why the Taney-era invalidations were almost always rooted in the few positive and express disempowerments placed on states in the Constitution, not on the negative implication of the Commerce Clause. This was indeed an era of strict constructionism. As it turned out, however, state centricity as a doctrinal trend was indeed at its twilight for the Court. The federal judicial personnel were changing rapidly in this era of emerging Republican political dominance, as was the economy itself. At the same time, the number of Commerce Clause cases before the Court increased from an average of just over one per term before 1873 to over three per term after. Further, the tension between the Jacksonians and the Republicans began to emerge in the later part of this era, as Republican jurists like Bradley showed that they were inclined to use federal exclusiveness under Cooley as readily as the Constitution's express limitations on states. In the short time from the end of the Civil War to 1873, the Court changed from solidly Jacksonian Democrat to equally solidly Republican. In 1870, the Jacksonian Democrat Robert Grier retired, creating a vacancy that President Grant filled with a Republican jurist, William Strong. At about the same time, the Republican Congress created a ninth seat on the Court to give Grant an additional appointment opportunity. Grant nominated to that seat a prominent railroad attorney and Republican, Joseph P. Bradley.47 While Justices nominated by Lincoln had controlled the Court since 1865, with the March of 1870 Bradley confirmation, the Court had a majority of avowedly Republican Justices for the first time. Two years later, Grant had the opportunity to fill another Court vacancy and placed another known Republican, Ward Hunt, onto the Court. Lastly, in 1874, Grant appointed Morrison Waite to the Chief Justiceship. These four Grant appointees joined Justices Swayne, Davis