Louisiana v. Texas/Concurrence White

Mr. Justice White concurred in the result.

Taking the allegations of the bill to be true-as upon demurrer must be done-this suit cannot be regarded as one relating only to local regulations that incidentally affect interstate commerce and which the state may adopt and maintain in the absence of national regulations on the subject. On the contrary, if the allegations of the bill be true, the Texas authorities have gone beyond the necessities of the situation, and established a quarantine system that is absolutely subversive of all commerce between Texas and Louisiana, particularly commerce between Texas and New Orleans. This court has often declared that the states have the power to protect the health of their people by police regulations directed to that end, and that regulations of that character are not to be disregarded because they may indirectly or incidentally affect interstate commerce, But when that principle has been announced it has always been said that the police power of a state cannot be so exerted as to obstruct foreign or interstate commerce beyond the necessity for its exercise, and that the courts must guard vigilantly against needless intrusion upon the field committed to Congress. Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 470-473, 24 L. ed. 527, 529-531; Hennington v. Georgia, 163 U.S. 299, 313, 318, 41 L. ed. 166, 172, 174, 16 Sup. Ct. Rep. 1086; Missouri, K. & T. R. Co. v. Haber, 169 U.S. 613, 628, 630, 42 L. ed. 878, 883, 884, 18 Sup. Ct. Rep. 488. The present suit proceeds distinctly on the ground that the regulations established by the authorities of Texas under its statute go beyond what is necessary to protect the people of that state against the introduction of infectious diseases, and destroys the possibility of any commerce between New Orleans and Texas. Now, if Texas has no right, by its officers, to establish regulations that unreasonably or unnecessarily burden commerce between that state and Louisiana, and if the state of Louisiana is entitled, under the Constitution, to have the validity of such regulations tested in a judicial tribunal, then this court should put the defendants to their answer, and the cause should proceed to a final decree upon its merits.

But I am of opinion that the state of Louisiana, in its sovereign or corporate capacity, cannot bring any action in this court on account of the matters set forth in its bill. The case involves no property interest of that state. Nor is Louisiana charged with any duty, nor has it any power, to regulate interstate commerce. Congress alone has authority in that respect. When the Constitution gave this court jurisdiction of controversies between states, it did not thereby authorize a state to bring another state to the bar of this court for the purpose of testing the constitutionality of local statutes or regulations that do not affect the property or the powers of the complaining state in its sovereign or corporate capacity, but which at most affect only the rights of individual citizens or corporations engaged in interstate commerce. The word 'controversies' in the clauses extending the judicial powers of the United States to controversies 'between two or more states,' and to controversies 'between a state and citizens of another state,' and the word 'party' in the clause declaring that this court shall have original jurisdiction of all cases 'in which a state shall be a party,' refer to controversies or cases that are justiciable as between the parties thereto, and not to controversies or cases that do not involve either the property or powers of the state which complains in its sovereign or corporate capacity that its people are injuriously affected in their rights by the legislation of another state. The citizens of the complaining state may, in proper cases, invoke judicial protection of their property or rights when assaild by the laws and authorities of another state; but their state cannot, even with their consent, make their case its case and compel the offending state and its authorities to appear as defendants in an action brought in this court. If this be not so, we were wrong in New Hampshire v. Louisiana, 108 U.S. 76, 27 L. ed. 656, 2 Sup. Ct. Rep. 176, in which case it was held that one state could not, by taking charge of demands or debts held by its citizens against another state, acquire the right to bring a suit in its name in this court against the debtor state.

I must express my inability to concur in that part of the opinion of the court relating to the clause of the Constitution extending the judicial power of the United States to controversies 'between a state and citizens of another state.' In reference to a controversy of that sort the court says that, where none exist between states, it is not for this court to restrain the governor of a state in the discharge of his executive functions in a matter confided to his discretion and judgment. But how can the governor of a state be said to have an executive function to disregard the Constitution of the United States? How can his state authorize him to do that? It is one thing to compel the governor of a state, by judicial order, to take affirmative action upon a designated subject. It is quite a different thing to say that, being directly charged with the execution of a statute, he may not be restrained by judicial orders from taking such action as he deems proper, even if what he is doing and proposes to do is forbidden by the supreme law of the land. His official character gives him no immunity from judicial authority exerted for the protection of the constitutional rights of others against his illegal action. He cannot be invested by his state with any discretion or judgment to violate the Constitution of the United States.

The court also says that it cannot accept the suggestion that the bill can be maintained as against the health officer alone on the theory that his conduct is in violation or in excess of a valid law of the state, as the remedy for that would lie with the state authorities, and no refusal to fulfil their duty in that regard is set up; and that it is difficult to see how on this record there could be a controversy between the state of Louisiana and the individual defendants without involving a controversy between the states. But the important question presented in this case-if the state of Louisiana in its sovereign capacity can sue at all in respect of the matters set out in the bill-is whether the regulations being enforced by the health officer are in violation of the Constitution of the United States. The opinion of the court will be construed as meaning that even if Louisiana be entitled, in her sovereign capacity, to complain of those regulations as repugnant to the Constitution of the United States, it could not proceed in this court against the defendant health officer, and that its only remedy is to appeal to the authorities of Texas, that is, to the governor of that state, who has power to control his codefendant, the health officer, and who has approved the regulations in question. I am not aware of any decision supporting this view. If the regulations in question are in violation of the Constitution of the United States, the defendant health officer, I submit, may, without any previous appeal to the governor of Texas, be restrained from enforcing them, either at the suit of individuals injuriously affected by their being enforced, or at the suit of Louisiana in its corporate capacity, provided that state could sue at all in respect of such matters.

Although unable to assent to the grounds upon which the court rests its opinion, I concur in the judgment dismissing the suit solely upon the ground that the state of Louisiana in its sovereign or corporate capacity cannot sue on account of the matters set out in the bill.