Dormant Commerce Clause - Privileges and/or Immunities - State Action

Question 1

T/F: When a State makes a law and Congress is silent on the issue, the first step is to determine which Lopez box the State law falls into

Answer 1

False

Lopez only matters if Congress ISN’T silent

Question 2

When congressional law is constitutional, and it conflicts with State law, then the State law is obliterated by the:

Answer 2

Supremacy Clause

Question 3

T/F: Under the Commerce Clause, states may pass laws that affect commerce, so long as they are not repugnant to the power of Congress to regulate interstate commerce

Answer 3

True

Willson v. Black Bird Creek Marsh Company (1829)

Question 4

When can a State discriminate against other states for purposes of commerce? What are the limitations?

Answer 4

The State CAN discriminate if they are a “Market Participant”

Restrictions cannot reach beyond parties that the Government is transacting with

South-Central Timber Dev. v. Wunnicke (1984)
Hughs v. Alexandria Scrap

Question 5

In South-Central Timber Dev. v. Wunnicke (1984), Alaska decided to sell a whole bunch of timber. Pursuant to an Alaskan Law, whoever bought it was required to partially process the timber before shipping it outside of the State to promote and protect Alaska’s timber business.

What did the Court say about this in relation to regulating commerce?

Answer 5

The Court said a state may impose burdens on commercial transactions within the market in which it is a participant, but may not go further and impose conditions that have a substantial regulatory effect outside of that particular market

Question 6

In United Haulers v. OHSWMA, OHSWMA is the county authority for waste management and they agreed to manage ALL waste within the counties. Private haulers can still pick up waste but then the Authority takes over for processing and disposing.

Counties enacted “Flow Control” requiring all waste produced to be delivered to OHSWMA.

What did the Supreme Court say about “Flow Control” ordinances in relation to their burden on interstate commerce?

Answer 6

A flow-control ordinance that favors the government, but treats in-state and out-of-state private businesses the same, DOES NOT constitute an excessive burden on interstate commerce in violation of the Commerce Clause

Question 7

If a State is acting as a “Market Regulator” and has a State Monopoly, why are its laws relating to regulating commerce in that category likely Constitutional?

Answer 7

Because there are no dangers of protectionism (not discriminating against other states)

United Haulers v. OHSWMA

Question 8

If a State is acting as a “Market Regulator” and DOES NOT have a State Monopoly, what are the next things we ask about the law in question?

Answer 8

(1) Is the State law discriminatory on its face?

(2) Does the State law have a discriminatory purpose?

(3) Does the State law have a discriminatory effect?

Question 9

If a State is acting as a “Market Regulator” and DOES NOT have a State Monopoly, and passes a law that is trying to protect in-state interests at the expense of out-of-state stuff (protectionist)…

The law will be determined to have a discriminatory ____________.

Answer 9

Purpose

Philadelphia v. New Jersey
A state that discriminates against other states’ articles of commerce on the basis of origin is in violation of the dormant commerce clause

When a law is discriminatory on its face it is said to be “Virtually Per Se Unconstitutional”

Question 10

What exception to “Virtually Per Se Unconstitutional” did we go over in class as the only known example where a facially discriminatory law was allowed because of a compelling state interest?

Answer 10

Maine law forcing people to buy bait fish in Maine - to prevent parasites

Question 11

When congress is silent, and a state, as a regulator (with no monopoly), makes a law that is discriminatory on its face (not neutral), that law is said to be:

Answer 11

“Virtually Per Se Unconstitutional”

Question 12

If a State is acting as a “Market Regulator” and DOES NOT have a State Monopoly, and passes a law that has neutral language that can still be interpreted to impact other states:

The law MAY be determined to have a discriminatory ____________.

Answer 12

Effect

Example: “All cheese sold in Wisconsin must have been manufactured in the last 24 hours”

Question 13

The “Pike Test” applies when a State is acting as a “Market Regulator” and DOES NOT have a State Monopoly, and passes a law that has neutral language that can still be interpreted to impact other states.

How is the “Pike Test” applied?

Answer 13

(1) Weigh the interference with Interstate Commerce vs. the State’s interest in the health and safety of its citizens

(2) Defer to state (uphold state law) unless the burden to interstate commerce outweighs the benefit to health and safety

Question 14

Although it might carry less weigh because it comes from Justice Brennan’s concurrence in a plurality opinion handed down in Kassel v. Consolidated Freightways, the “Pike Plus Test” applies when the DISPROPORTIONATE impact of the neutral State law is out-of-state.

How does the “Pike Plus Test” work?

Answer 14

Do the Pike test without deference to the State finding of the health/safety benefit

Question 15

In Kassel v. Consolidated Freightways, Iowa passed a law limiting the lengths of certain types of trucks that can be used on its highways and defended the law as a valid exercise of its police power regarding improving safety.

Why did the Supreme Court shoot it down?

Answer 15

It was shown that any safety improvements are only marginal

Under the principle of the Dormant Commerce Clause, a state law that heavily burdens interstate commerce while only marginally furthering a state health and safety purpose is unconstitutional

Question 16

If Congress is silent, the State is acting a regulator, and there is no state monopoly, BUT the state completely shuts the door on out-of-state competitors by directing all related activity to an in-state private company, the law has a discriminatory ______________.

What case provides an example?

Answer 16

Effect

Carbone
City promised a private company 5-year operation of a waste facility if they built it for the city; Then the city required all residents to use that facility (not a market participant yet; no monopoly yet)

Question 17

How can a state overcome their law being struck down as “virtually per se” unconstitutional?

Answer 17

By demonstrating a “compelling state interest”

Maine bait fish example
(Its a very high bar - only one known case)

Question 18

Article 4, Section 2:
“The citizens of each State shall be entitled to the privileges AND immunities of citizens in the several states”

Describe 2 limitations on the way States treat citizens of other states stemming from this clause

Answer 18

(1) States cannot treat citizens of other states as aliens

(2) States cannot deny basic rights and opportunities that are “fundamental to interstate harmony” to non-citizens while preserving them for locals, unless States have good reason

Question 19

United Building v. City of Camden (1984) was a case involving a Municipal ordinance in Camden requiring 40% of contractor and subcontractor employees be Camden residents if they are working on city construction projects.

Was this a violation of “Privileges AND Immunities?” Why or why not?

(Hint: there is a 2 step test)

Answer 19

Non-New Jersey residents venturing into Camden would not enjoy the same privileges as a New Jersey resident living in Camden = Privileges and Immunities violation

Can’t just pass a law making it impossible for out of state workers to work in your state

2 Step Test

(1) Is there a fundamental right? - Fundamental to interstate harmony (Identify a right that the people have that is being infringed)

(2) Does the State have a good enough reason to engage in that discrimination?

Question 20

T/F: The Dormant Commerce Clause protects the rights of corporations and humans

Answer 20

True

Question 21

T/F: The Privileges AND Immunities Clause protects the rights of corporations and humans

Answer 21

False - Only Humans

Question 22

The Privileges AND Immunities is said to unify the nation as “one citizen” whereas the Dormant Commerce Clause is said to unify what?

Answer 22

The national economy

Question 23

Explain the big picture difference between the “Privileges AND Immunities Clause” and the ““Privileges OR Immunities Clause”

Answer 23

Privileges “and” Immunities
Article 4, Section 2
Has to do with how one state treats citizens of another state

Privileges “or” Immunities
14th Amendment, Section 1, Clause 2
Has to do with a State’s relationship with its own citizens (mostly about rights a state can’t deny their own citizens)

Question 24

The right to go to DC and lobby, Free access to seaport, Right to access federal courts and administrative bodies, Right to seek the protection of the federal government while abroad, Right to peaceably assemble/protest, habeas corpus, Rights guaranteed by a treaty with a foreign government, Right to move and change your place of residence, Right to use the navigable waters of the US, Any rights preserved by the 13th or 15th amendments

These are all rights protected by what clause?
(Hint: States cannot deny these rights to their citizens)

Answer 24

Privileges OR Immunities

Question 25

T/F: The privileges or immunities clause of the 14th amendment only protects legal rights that are associated with federal US citizenship, not those privileges or immunities that pertain to state citizenship

Answer 25

True

Has to do with a State’s relationship with its own citizens with regard to their federal citizenship rights

Saenz v. Roe (1999)
Article 4 protects right to travel – 14th amendment prevents states from making laws that interfere with that right

Question 26

What are the famous 1873 cases related to Privileges OR Immunities

Answer 26

The Slaughterhouse Cases

Question 27

Name the case:

California enacted a statute that limited the amount of welfare benefits available to a family residing in California for less than 12 months. A new California resident seeking welfare benefits, brought a class-action suit.

Holding:
A state violates the Fourteenth Amendment’s Privileges or Immunities Clause by limiting welfare benefits based on a person’s status as a new resident.

Answer 27

Saenz v. Roe (1999)

Question 28

T/F: State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment

Answer 28

True

Shelley v. Kramer (1948)
A black family bought a house on restricted parcels of land without knowledge of the restrictive covenant against black ownership there and the Missouri Supreme Court enforced the covenant

Question 29

In Edmonson v. Leesville Concrete Co. (1991), During jury selection, Leesville used two of its three statutorily permitted peremptory challenges to remove African American persons from the prospective jury. The state court judge enforced the discriminatory challenges.

How did the Supreme Court go about resolving this as a 14th amendment violation? (Lugar Test)

Answer 29

Lugar Test (steps for finding state action)

(1) Is there a deprivation of a right or privilege grounded in state authority?

(2) Should we treat the private party as a state actor?

Peremptory challenges are only exercised based on statutory authority provided by the government, and in this case, the state court judge (a state actor) enforced the discriminatory challenges (So it is State Action & Leesville can be deemed a government actor)

Question 30

You can have private entities that get so wrapped up in government that you can no longer differentiate between private and government.

For example, a statewide public school scholastic association is “overwhelmingly” composed of public-school officials for that state.

This is a concept known as ____________________.

Answer 30

Entwinement