Commerce Clause - Uniformity

[Leslie Goldstein]

I agree that the disagreements can run deep.  Where I disagree is in
your apparent(?--I can't really tell?) view that these bans on travel to
take advantage of another state's law are constitutional .  I think it
is clear that they are not.  A Delawarean can travel to Maryland to buy
cheaper liquor.  Delaware cannot ban that.  What they could ban I think
is bringing it back into the state of Delaware in a way that atttempts
to evade Delaware's own liquor duties (I don't know if such a ban
exists, but if it does it is not enforced at all).  I do not think any
state could constitutionally (in the days when divorce was difficult)
have forbidden people to go to Las Vegas to get quickie divorces.  I am
not sure that such use of interstate travel in and of itself makes the
regualting of divorce a legitimate federal power.  Is this (i.e., that
it does) what you are arguing?
Leslie

Douglas Laycock wrote:
>
>         Diversity of policies in a federal system has benefits; it also has costs.
>
>         We're speculating about political reactions here, but the problem I was
> pointing to requires a couple of factors to really come into play.  One, it
> is not people who move to the more permissive state; it is people who,
> without changing their residence, travel to the more permissive state for
> the principal  purpose of evading their home state's law.  This is clearest
> when they go for the weekend and return; it is somewhat clouded in the
> suicide cases, where they never return.  But I was hypothesizing that the
> family members do return.
>
>         Two, it must be a deeply divisive issue that both sides really care about.
>  The home state must care enough to enforce its laws and make the activity
> impossible at home.  Texans don't go to Nevada to work as, or patronize,
> prostitutes, because there is ample opportunity to do both in Texas.  There
> are intermitten arrests; the Austin police busted a state legislator in the
> session before last; but there is no political support for investing the
> kind of resources it would take to stamp out prostitution in Texas.
>
>         The target of regulation must care enough to go to the other state to
> evade the law.  I can't buy beer on Sunday morning, but that doesn't bother
> me in practice, and even if it did, no one would go out of state to evade
> it unless they lived right by the border.
>
>         And the home state must care enough to politically react when that
> happens.  Texans go to Nevada to gamble, and the state doesn't much care.
> The state runs a numbers racket itself, so the laws against gambling have
> come to be mostly about suppressing competition.
>
>         On really deeply felt issues, some people care enough to travel and the
> states care enough to react.  Pre Roe v. Wade, we had some high profile
> controversies about states trying to prevent women from going out of the
> state for abortions; there was a more recent case in Ireland.  Virginia
> tried to prevent New York abortion providers from advertising in Virginia;
> that was struck down.  We had a case in Missouri a few years ago where a
> family tried to take their dying patient to Minnesota, so that some form of
> care could be withheld.  Missouri tried to prevent it.  These reactions are
> real; you don't get such reactions to less deeply felt policy disputes.
>
>         When these deep disagreements arise, one response for the less permissive
> states is to seek preemptive federal regulation.
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>         512-232-1341 (phone)
>         512-471-6988 (fax)
>         dlaycock at mail.law.utexas.edu