By: Bruce Fein –
The American Revolution had its Benedict Arnold. The Commerce Clause of the U.S. Constitution has its American Optometric Association (AOA) with its war against interstate ocular telemedicine. Thereby hangs a tale.
The Constitution was born of protectionist trade wars between the states that flourished under the anemic Articles of Confederation. The Constitutional Convention of 1787 was convened substantially in response to trade barriers each state had erected.
The Commerce Clause, Article I, section 8, clause 3, was among the brightest of the Constitution’s crown jewels. Not only does it empower Congress to prohibit state discrimination against interstate commerce. It also, ex proprio vigore, preempts state laws that saddle such commerce with undue burdens. Supreme Court Justice Benjamin Cardozo elaborated in Baldwin v. G.A.F. Seelig, Inc. (1935), a decision which invalidated a law protecting in-state milk producers and distributors from interstate competition.