Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission

Mr. Justice Frankfurter, whom Mr. Justice Douglas joins, dissenting.

Panhandle seeks to sell natural gas from its fields in Texas, Oklahoma and Kansas directly to the Ford Motor Company at its Dearborn plant in Michigan. Conced-edly this is the clearest kind of interstate commerce. We have not here in controversy Panhandle’s desire to lay pipes in the public highways of Michigan and the power of Michigan to make exactions for such privileges so long as it does not offend the doctrine of unconstitutional conditions. Michigan here is asserting a wholly different claim. The State claims the right to say whether an out-*338of-State seller may be permitted to compete with Michigan distributors in the sale of natural gas to Michigan industrial consumers. Michigan says that it may determine that the local market is saturated and that, since the entry of an out-of-State distributor may disadvantage or disrupt the local market, it may deny him leave to make such sales.

The right here asserted by Michigan to prohibit Panhandle from furnishing gas directly to consumers has, since 1938, by virtue of the Natural Gas Act, been lodged in the Federal Power Commission. We are advised by the Commission that it has exercised in multitudinous instances authority over transportation for direct sale to consumers. “It is, of course, true,” adds the Commission, “that a state certificate authorizing an interstate sale to an industrial consumer would be meaningless if the Federal Commission can deny a certificate for the necessary transportation facility, and vice versa.” If this means anything it means that the control which Michigan here claims is within the effective authority of the Federal Power Commission. The Federal Power Commission may deny a certificate for transportation of gas by Panhandle to the Ford Motor Company for the same reasons that Michigan would rely upon in withholding a certificate of convenience and necessity to Panhandle to sell its gas to Ford. Questions of conservation, of market stability, of cut-throat competition and the like would be relevant factors in one case as well as in the other. The Commission is clear that the power of Michigan is subordinate to its authority, so that Michigan could not frustrate the Commission’s authority in granting or denying to Panhandle the right to enter Michigan for direct sale to consumers.

The inference to be drawn from the Commission’s position is that, since Panhandle needs the Commission’s cer*339tificate for the physical transportation of the gas to Eord, it cannot in any event make such sale to Ford prior to the issuance of the certificate. Howsoever this be, the Court has placed the case in a different focus. It is suggested that until there is an actual clash between an order of the Commission and the order now assailed there is a vacuum which Michigan may enter. No doubt Congress could give the States authority over such a field of interstate commerce and deny it to the Commission or give it to the States until supplanted by Commission action. It has done neither. The problem therefore remains what it was under the law of the Commerce Clause before the enactment of the Natural Gas Act.

The problem does not disappear by invoking a solving phrase, “regulation, not absolute prohibition.” The Commerce Clause sought to put an end to the economic autarchy of the States. It is not for Michigan to determine what competition she will or will not allow from without, subject, of course, to her right to protect those State interests which are implied by the now threadbare phrase that interstate commerce must also pay its way, or to protect local interests that only incidentally or insignificantly touch interstate or foreign commerce. E. g., Union Brokerage Co. v. Jensen, 322 U. S. 202.

If there were no Constitution with a Commerce Clause, each State could shut out the products of other States or admit them on conditions. Under the Constitution such commerce belongs not to the States but to Congress. It is not for the States, in pursuit of local State policies, to decide what products from without may cross State boundaries or admit them on condition that they satisfy local economic policy. If as a matter of national policy States are to have such power, Congress must give it to them, as it did in the case of liquor, prison-made goods, and insurance. See Act of Aug. 8, 1890, 26 Stat. *340313, 27 U. S. C. § 121; Act of July 24, 1935, 49 Stat. 494; Act of Aug. 10,1939, 53 Stat. 1391, 26 U. S. C. § 1606 (a) ; Act of Mar. 9, 1945, 59 Stat. 34,15 U. S. C. § 1012 (b).

Against the inherent right of a State to keep out except by its leave the products or services from other States, the decisions in Buck v. Kuykendall, 267 U. S. 307, and Bush Co. v. Maloy, 267 U. S. 317, seem to me decisive.

What Mr. Justice Brandéis, speaking for the entire Court, excepting only Mr. Justice McReynolds, said in the Buck case defines the situation here. There, as here, the Court was confronted with a State statute requiring a certificate of convenience and necessity. The regulation related to passenger and freight busses. There was no outright prohibition, but of course such a system of certification is based on the duty of denying access to the market if the community is already adequately served. Such a scheme “determines whether the prohibition shall be applied by resort, through state officials, to a test which is peculiarly within the province of federal action— the existence of adequate facilities for conducting interstate commerce. . . . Thus, the provision of the Washington statute is a regulation, not of the use of its own highways, but of interstate commerce. Its effect upon such commerce is not merely to burden but to obstruct it. Such state action is forbidden by the Commerce Clause.” 267 U. S. at 316.

It is easy to mock or minimize the significance of “free trade among the states,” Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 526, which is the significance given to the Commerce Clause by a century and a half of adjudication in this Court. With all doubts as to what lessons history teaches, few seem clearer than the beneficial consequences which have flowed from this conception of the Commerce Clause. It is true of this principle, as of others, that the principle is not to be reduced to the appeal of the particular instance in which it is invoked.