As best Blawgletter recalls, we learned somewhere between 1981 and 1984 that the Constitution’s dormant commerce clause hates disturbances. That the clause would prefer to sleep in. But that on occasion it must rouse itself.
Today proved no exception — or, at most, a little one. The Second Circuit ruled that the dormant clause needn’t worry about a Connecticut law purporting to ban certain features of gift cards. The court held that a mall proprietor may have stated a claim for relief to the extent it asserted that the National Bank Act preempts the Constitution State attorney general’s claims that the proprietor violated state law by charging some kinds of gift card fees. The court also held that the dormant commerce clause could not care less about the prohibition of such fees to the extent it applied to cards that Connecticuters bought in, um, Connecticut. Blumenthal v. SPGGC, LLC, No. 05-4711 (2d Cir. Oct. 19, 2007).
And so it goes.
Barry Barnett
