Dormant Commerce Clause

Question 1

Dormant Commerce Power

Answer 1

1) Limits STATE power to regulate interstate commerce (implied)
2) ONLY when Congress has failed to act (no regulation)
3) Constitution does not expressly prohibit states from regulating in that area

Question 2

Cooley v. Board of Wardens

Answer 2

States have some concurrent authority when Congress is silent

Question 3

Three Types of State Regulation

Answer 3

1) Facially discriminatory - (strict scrutiny/presumed invalid)
2) Facially neutral, but purpose/effect discriminatory - (strict scrutiny/presumed invalid)
3) Facially neutral, but still causes some burden on interstate commerce - (Pike Balancing Test/not presumed invalid)

Question 4

Philadelphia v. New Jersey

Answer 4

Excluding out of state trash

Facially neutral, but purpose/effect discriminatory

1) May not discriminate against other states’ articles of commerce (waste) on the basis of origin
2) Don’t want states to isolate themselves - one national free market

Question 5

Dean Milk Co. v. Madison

Answer 5

5 mile radius for milk

Facially neutral, but purpose/effect discriminatory

1) Must have a rational basis for regulating in favor of local interests
2) Must show there are no less discriminatory means

Question 6

Hunt v. Washington State Apple Advertising Commission

Answer 6

Apple labels

Facially neutral, but causes a burden

Question 7

Exxon Corp. v. Governor of Maryland

Answer 7

Prohibited refiner-operated gas stations in the state

Facially neutral, but causes a burden - held that it didn’t

Factors to determine when a state impermissibly burdens:

1) creates no barriers against interstate independent dealers
2) does not prohibit flow of interstate goods
3) does not place added costs on interstate goods
4) does not distinguish between in/out-of-state companies

Question 8

West Lynn Creamery, Inc. v. Healy

Answer 8

Tax on milk, subsidy to state farmers

Facially neutral, but purpose/effect favors in state (discriminates)

1) Burdens out-of-state businesses with a tax that benefits only in-state businesses
2) Out-of-state businesses have no way to protest and in-state businesses won’t do it on their behalf

Question 9

Southern Pacific Co. v. Arizona

Answer 9

Train length

Facially neutral, but causes a burden

1) Rational Basis - any rationale that appears to be legitimate (state could have reasonably assumed)

2) Pike Balancing Test - is there an excessive burden on interstate commerce?
1. Nature of burden
2. State’s interest
3. National interest (uniformity)

Question 10

Pike Balancing Test

Answer 10

Is there an excessive burden on interstate commerce?

1. Nature of burden
2. State's interest
3. National interest (uniformity)

Question 11

Market Participant Rule

Answer 11

South-Central Timber Development, Inc. v. Wunnicke

Dormant Commerce Clause does not apply if the state is acting as market participant rather than regulator

But: state can’t impose regulations as a participant in order to regulate a “downstream” market