Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 6 (2026)
William & Mary Law Review
Abstract
The Supreme Court applies the territorial framework of international law to resolve disputes over the reach of state power. Under this framework, a state’s power is coterminous with its borders, such that a state’s regulatory power within its territory is limited only by federal law. The Court recently used this framework to overrule an obscure line of Dormant Commerce Clause cases that held that a state regulation of local conduct could have impermissible extraterritorial effects.
This Article argues that the territorial model of state power from international law does not account for the division of sovereignty within our federal system. In several foundational cases, the Jay, Marshall, and Taney Courts all held that the people of each state are the source of its sovereign power, and the people of one state have no right to control the people of another sovereign. Moreover, the records of the Constitutional Convention, debates over ratification, and early court precedent show that the founding generation understood state sovereignty to include autonomy over issues not delegated to the federal government. By using what this Article calls “indirect extraterritorial legislation,” a state can violate these fundamental principles of sovereignty and federalism with a regulation that formally applies only to local conduct. Although such legislation would have violated the extraterritoriality doctrine of the Dormant Commerce Clause, the Court eliminated that doctrine in National Pork Producers Council v. Ross without seeming to understand the values at stake or how most lower courts had dealt with the issue. Moving forward, a state like California or Texas thus could use its economic influence to push its social policy on the rest of the country. California, for example, could require any company doing business in the state to affirm that it gives all of its U.S. employees a specified minimum wage, union rights, or reproductive healthcare. And Texas could respond in kind, making national economic cohesion another casualty of the culture wars.