Hard or Soft Pluralism?: Positive, Normative, and Institutional Considerations of States’ Extraterritorial Powers

This article is an invited commentary to an extremely thought-provoking address delivered by Richard H. Fallon, Jr., that addressed unexpected consequences that would follow a reversal of Roe v. Wade. The article addresses the question of states’ extraterritorial powers, and asks whether Mary, a citizen of a state that prohibited abortions (let’s say Utah), could be barred from obtaining abortions in a state (let’s say California) in which abortions were legal. The Article makes seven points in relation to this question. Its observations are relevant not only to the unlikely event of Roe’s demise, but also to a non-trivial class of constitutional state laws that can be circumvented if a citizen can cross his state border and avail himself of his neighboring state’s less restrictive laws. This class includes restrictions on gambling and assisted suicide, mandatory motorcycle helmet laws, and even laws regulating agricultural goods. The first four points are doctrinal. First, contrary to many people’s strong intuitions, states in our country’s federal union generally do have the power to regulate their citizens’ out-of-state activities. Second, although states enjoy general extraterritorial regulatory powers, particular regulations can run afoul of constitutional principles concerning interstate relations that are found in the right to travel, Article IV’s Privileges and Immunities Clause, and the Fourteenth Amendment’s Privileges or Immunities Clause. Third, Utah’s effort to regulate Mary would not be precluded under any of these doctrines as they currently are understood by the United States Supreme Court. Fourth, current doctrine nevertheless cannot be presumed to be stable because, among other reasons, there has not been a sustained practice of such state extraterritorial regulations that has received attention from legislatures, the public, and the courts. The remaining three points are normative and institutional. The fifth point is that answering the doctrinal question of whether Utah can regulate Mary’s California travels invariably will turn on normative considerations because the question is not answered by clear constitutional text, longstanding tradition, or precedent. The sixth point clarifies the normative question that is presented by Utah’s regulatory attempts in relation to Mary. It also demonstrates that whether Utah should have such extraterritorial powers is an exceedingly difficult question that goes to the heart of the meaning of state citizenship and national citizenship and, ultimately, to the nature of our country’s federal union. Why? It is widely recognized that, with regard to those policies that neither the Constitution nor federal statutory law demands national uniformity, states may take different regulatory approaches. Not infrequently, however, a state will be unable to accomplish its constitutionally legitimate goals if its citizen can free herself of her home state’s regulation simply by walking into a state that does not so regulate. If states does not have the power to regulate so as to preclude “travel-evasion” of their constitutional policies, then the extent of the pluralism of state policies possible under our federal union is, as a practical matter, quite limited in relation to the non-trivial class of policies that are vulnerable to travel-evasion. Call this a regime of “soft” pluralism. By contrast, a federal system in which Utah can prohibit Mary from obtaining an abortion in California would be a regime of “hard” pluralism in which states can efficaciously regulate across the entire range of matters with respect to which federal law does not demand nationwide uniformity. To be clear, this Article does not seek to definitively resolve the choice between “soft” and “hard” pluralism, but only aims to show that the choice is a difficult one and that much rides on how the question is resolved. The Article’s seventh, and final, point is largely institutional: what societal institutions should make the choice between “soft” and “hard” pluralism? Though the Article’s doctrinal analysis establishes that our country presently has a regime of “hard” pluralism in which each state generally can choose whether it wishes to extraterritorially regulate its citizens, point seven makes clear that these state decisions may be legislatively reversed by Congress. Congress has the power to determine the scope of state extraterritorial powers under the Full Faith and Credit Clause’s “Effects” Clause, Section Five of the Fourteenth Amendment (in relation to what qualifies as a privilege or immunity of national citizenship), the Commerce Clause, and possibly Article IV’s Privileges and Immunities Clause. Point seven further argues that Congress properly has a privileged role in answering such questions because it has institutional advantages vis-a-vis both states and the federal courts in deciding the scope of state extraterritorial regulatory authority and in thereby determining the nature of state and federal citizenship and the resulting character of our federal union