Argument Recap: United Hauler’s v. Oneida-Herkimer Waste Mgmt. on 1/8

The following argument recap is by Anna Holloway of Harvard Law School; her preview of this case can be found here.

In Monday’s oral arguments in No. 05-1345, United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, Evan Tager, for the petitioners, commenced oral argument by heavily emphasizing the severity of the barriers to interstate commerce that, in the petitioners’ view, ordinances such as those at issue create. The concerns underlying the Commerce Clause are implicated, Mr. Tager argued, whether the interstate commerce was being obstructed for the benefit of a public enterprise or a private one.

Mr. Tager almost immediately faced a line of questioning from Justice Breyer regarding the potential scope of the decision the petitioners were asking the Court to reach. Justice Breyer was particularly concerned with the application of petitioners’ proposed rule to the myriad situations in which a municipality has a monopoly over public services (such as providing gas), the constitutionality of which has always been assumed, and seemed unsettled by Mr. Tager’s response that the same reasoning would apply.

Next, Mr. Tager addressed a suggestion by Justice Ginsburg that “great care” was taken by the majority in Carbone to not characterize the facility in that case as public. He conceded that the Court in that case did not affirmatively decide the issue of the public/private distinction, and suggested that the distinction didn’t matter to the majority. In support, he emphasized the rejection by the Supreme Court of the traditional public function test in other contexts.

Responding to a suggestion by Justice Souter that Carbone can also be explained in terms of private protectionism (in that the developer of the facility would have profited considerably in the five years prior to the facility’s transfer into public ownership), Mr. Tager suggested that the formalistic distinction suggested Justice Souter’s question had been rejected, and would, in any instance, encounter practical difficulties in application. There is, Mr. Tager argued, a way you do things and a way you don’t. While an embargo is subject to strict scrutiny, creating the same outcome by making the provision of the service free to the public is acceptable. To this end, he outlined the many ways the counties here could have achieved the same outcomes without implicating the Commerce Clause. His argument drew criticism from some of the Justices as being equally as formalistic as the alternative.

Mr. Cahill, for the respondents, emphasized that the Court has never held that public service is comparable to private enterprise for the purposes of the dormant Commerce Clause analysis, and that the important point in this case is that here the government is the only entity which benefits from the ordinances, whereas private entities were benefited in other cases.

Mr. Cahill addressed the issue, raised by the Chief Justice, that there would be difficulties in applying respondents’ position when an entity is both publicly and privately owned. He argued that the answer in such an instance would not be automatic one way or the other, but that the key criterion, with respect to whether law would be unconstitutional, would be whether the government is actually in the transaction, taking on the risks, and spending public money to provide a public service.

Mr. Cahill sought to illustrate the three basic differences between what the public entity in this case does and what the private sector would do – namely, take risk for liability, fulfill national waste management objectives, and implement a comprehensive solid waste plan.

He concluded his oral argument by noting that respondents are, in providing a public service, still subject to the Constitution and must deal with the private sector fairly. If they do so, and do not favor anyone either in- or out-of-state, they should be judged under the Pike balancing test.

Ms. Halligan, Solicitor General for New York, made arguments as amicus in support of the respondents’ position. She suggested that the theory supported by the petitioners goes too far, rendering governments subject to strict scrutiny every time they seek to exclude private actors from the provision of government services. But, she argued, when a government takes over a service entirely, no discrimination ensues. The case is different from cases involving traditional export bans, which tended to benefit an in-state interest. Ms. Halligan argued that there is a meaningful distinction between government taking an action which benefits the citizens as a whole, and a law that benefits a local private economic interest and is intended to do so. For the dormant Commerce Clause to reach the former would be unprecedented and would implicate many government decisions.

In response to a question from the Chief Justice, Ms. Halligan addressed the issue of how to decide whether any given case is one of traditional governmental services or of regular market participation. She noted that, with respect to the instant case, the Court has clearly held that the provision of waste management services is an essential function that governments appropriately provide, and – in general – indicators of motive can be utilized to decide that issue in any given case.