Ian Millhiser Has Never Heard of the Structural Constitution. Justice Scalia Would Like a Word.

In a Vox piece previewing Suncor Energy v. Commissioners of Boulder County, which the Supreme Court hears on Monday, Ian Millhiser’s subtitle asks, “What on Earth is the ‘structure of the Constitution’?” Later, he waves that phrase away with “whatever the hell that means.” He charges that the oil companies are “thumbing their nose” at the justices’ “purported allegiance to textualism and originalism.” Really? Let’s take a closer look, starting with the justice who did more than anyone to bring textualism and originalism into the mainstream: Antonin Scalia.

Scalia opened his celebrated Morrison v. Olson dissent in 1988 by quoting the Massachusetts Constitution of 1780, which spells out the separation of powers in so many words: the legislative, executive, and judicial departments “shall never exercise” one another’s powers. The federal Constitution contains no such clause. Yet Scalia explained that the Framers “similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government.” He added that the principle is “expressed in our Constitution in the first section of each of the first three Articles,” which are the vesting clauses.

Federalism works the same way. Writing for the Court in Printz v. United States (1997), which asked whether Congress could order state officials to carry out a federal regulatory program, Scalia acknowledged that there was “no constitutional text speaking to this precise question,” so “the answer . . . must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court.” Scalia found it incontestable “that the Constitution established a system of ‘dual sovereignty,’” though that phrase appears nowhere in the document. Residual state sovereignty, he explained, was “implicit . . . in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones,” an implication “rendered express by the Tenth Amendment’s” language reserving to the states “powers not delegated” to the federal government.

The Court has continued to apply the same approach. In Franchise Tax Board v. Hyatt (2019), Justice Thomas wrote for the Court, “Each State’s equal dignity and sovereignty under the Constitution implies certain constitutional ‘limitation[s] on the sovereignty of all of its sister States,’” and where the “interstate . . . nature of the controversy makes it inappropriate for state law to control,” “the Constitution implicitly forbids” a state from applying its own law. And just last year, Justice Alito warned against what he called “black-and-white originalism”—being confined to the Constitution’s explicit text without examining its “very structure.”

Now apply those principles to Suncor. As I’ve written, the Founders understood the states to be coequal sovereigns whose authority stops at their borders. Speaking at the Virginia ratifying convention, James Madison described “a government of a federal nature, consisting of many coequal sovereignties.” In United States v. Bevans (1818), Chief Justice Marshall declared that “the jurisdiction of a state is co-extensive with its territory.” The Full Faith and Credit Clause, among other provisions, reflects that territorial limit. In Federalist 80, Alexander Hamilton explained that federal jurisdiction over matters touching “the peace of the confederacy” rests on the “plain proposition, that the peace of the whole ought not to be left at the disposal of a part.”

Boulder’s lawsuit seeks to do exactly what that design forbids. It would hold energy companies liable under Colorado tort law for the climate effects of emissions from every state and every nation on earth. As Colorado Supreme Court Justice Carlos Samour warned in dissent, this gives Boulder “the green light to act as its own republic.”

The precedent Millhiser relies on doesn’t change that. He points to Ohio v. Wyandotte Chemicals Corp. (1971), in which the Court declined to exercise original jurisdiction over a cross-border pollution suit and suggested in a footnote that state law would govern it. The very next year, in Illinois v. City of Milwaukee, a unanimous Court disavowed the footnote’s “contrary indication” as “based on the preoccupation of that litigation with public nuisance under Ohio law.” It held that “[w]hen we deal with air and water in their ambient or interstate aspects, there is a federal common law.” Even one of Boulder’s own amici concedes that Milwaukee repudiated Wyandotte, and Boulder’s own brief does not cite Wyandotte at all. It’s a red flag when the strongest case you can find to support your position was repudiated by the Court the year after it was decided.

Millhiser also argues that the Clean Air Act “does not bar state nuisance suits such as Suncor.” After all, the Act states that “air pollution control at its source is the primary responsibility of States and local governments.” But the question isn’t whether the Clean Air Act preempts Boulder’s suit on its own. It’s whether Congress, by legislating, handed the interstate field to the states. It did not. True, the Act’s savings clauses let states adopt emissions standards stricter than federal ones, but Millhiser’s own quotation gives the game away: “at its source.” When the Supreme Court read a nearly identical savings clause in the Clean Water Act in International Paper Co. v. Ouellette (1987), it held that the statute “precludes a court from applying the law of an affected State against an out-of-state source.” Otherwise, the Court warned, states “could do indirectly what they could not do directly—regulate the conduct of out-of-state sources.” That reasoning helps explain why the Second Circuit in City of New York v. Chevron Corp. (2021) rejected New York City’s attempt “to impose New York nuisance standards on emissions emanating simultaneously from all 50 states and the nations of the world.”

Millhiser calls the oil companies’ argument “audacious.” What’s truly audacious is pretending that textualists and originalists, from Justice Scalia on, didn’t see founding-era structural limits as part of the Constitution’s meaning, or hesitated to follow those limits wherever they lead. Scalia himself put it in three words: “Structure is destiny.”