Tuesday, October 18, 2011

So, yes, I was missing something

Ilya Somin has answered my query about land use and federalism. I wondered in an earlier post why land use scholars seem to assume that the Commerce Clause generally covers attempts by the federal government to regulate land use. Somin explains that the Court's definition of commerce--production, distribution, and consumption of commodities--is broad enough to reach land use because land is a commodity. This much makes sense to me, at least where the proposed consumption of land is or substantially affects interstate commerce. An obvious example would seem to be federal regulation of cell tower siting.

Then Somin goes on to explain, "State and local land use regulations preempted by federal legislation in most cases also qualify as 'economic activity,' since they control the use and distribution of land." Does this mean that regulation is itself commerce if the activity regulated is commerce? This, I must admit, is new to me.

I still wonder about RLUIPA. Is a church, synagogue, or mosque engaged in commerce when it assembles in its facility for worship? Or is the Commerce Clause argument that local land use regulations regulate commerce (and are therefore themselves commercial) when they address, as they often do, non-religious aspects of the land use, such as how many cars may be permitted on the premises at once, or whether a church may modify a building that has been declared a historic landmark? If that's the rationale then RLUIPA seems on rather firm footing; local governments nearly always offer ostensibly non-religious reasons for burdening religious exercise. And if religion can be regulated in this way, any activity on land will be open to federal regulation.

But then isn't there some tension between the Commerce Clause predicate for RLUIPA's substantial burden provision and the rationale of the provision itself? The justification for RLUIPA, as I understand it, is that we worry that the neutral, non-religious (commercial) reason that the local government has proffered for the adverse decision is not the real, subjective reason for the adverse decision. In other words, we are concerned about pretext. We suspect that the local government ruled against the religious landowner because of the landowner's religious convictions.

Perhaps the argument is that even religion is commerce if it is performed on land because land is a commodity. But that would seem to make all religion commerce. In my admittedly inexpert opinion, that seems rather odd.

As I mentioned in the comments of my earlier post, I still think RLUIPA is on firm footing when applied to truly individualized assessments. In those cases, the enumerated power is found in Section 5 of Amendment 14.

Adam MacLeod


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I have a question for you, Ilya, or anyone else who cares to chime in. If land is an article of interstate commerce, then how is it that local government control of land use is not a violation of the dormant commerce clause? The Supreme Court has frequently held that states and localities may not burden interstate commerce by engaging in "protectionist" measures that favor local or in-state businesses. And the courts have just as frequently acknowledged that local government land use regulation is plainly, brazenly protectionist in nature. The only way land use regulation can be immune from dormant commerce clause scrutiny, it seems to me, is by distinguishing land from things that actually travel across state lines, like oleomargarine or bushels of wheat. But that distinction falls apart if we say that land is an article of commerce for federal regulatory purposes.

Posted by: Ken Stahl | Oct 18, 2011 12:08:54 PM


Great question. I've no answer. The dormant Commerce Clause is above my pay grade. But I have a question about your question. Must the purpose or rather the effect of the local regulation be protectionist in order to run afoul of the dormant CC? If the former then perhaps the Commerce Clause prohibits regulation only by sloppy, dishonest land use planners.

I think I'm still not convinced of the premise, that use of land is always commerce. That premise seems to lead to some rather odd conclusions.

Posted by: Adam MacLeod | Oct 18, 2011 7:55:43 PM