NCP: The Dormant Commerce Clause

Question 1

Article 1, § 10:

Answer 1

denies states the right to coin money, write letters of mark and reprisal, etc. (specifically enumerated federal powers) but says nothing about regulating interstate commerce

a) Based on statutory interpretation. Congress can regulate interstate commerce. When combined with the Supremacy clause, congressional regulation trumps state legislation.
b) Pre-emption: usually one of three:
i) Explicit pre-emption: tells states cannot regulate
ii) Implicit pre-emption: congress intended to keep states out
iii) Occupation of the field: clear that congress wanted to occupy the whole field.

Question 2

Cooley v. Board of Wardens (1852)(p. 267)

Answer 2

i) Rule: There are areas in which both state and Congress can regulate.
ii) Rejection of the mutually exclusive spheres of influence argument.
d) Argument of non-interference
i) By Scalia and others that this area is none of the Supreme Court’s business
(1) If Congress has legislated than Supremacy Clause wins
(2) If Congress has not legislated in an area than the state can do whatever they want and the Supreme court cannot interfere.
ii) Textualist argument
(1) Expressio unius est exclusion alterius- the express of one is the exclusion of the other
(a) The very fact of not mentioning regulation of interstate commerce in the area of things states cannot do can be interpreted as an implicit acceptance of state power to regulate interstate commerce.

Question 3

5 Categories of protectionism:

Answer 3

1. Explicit Protectionism
2. Discrimination for non-protectionist purposes
3. Non-discriminatory statute with protectionist motive.
4. No explicit discrimination/intent, but discriminatory impact
5. No protectionism, discriminatory motive or impact, but nevertheless burden on interstate commerce

Question 4

1. Explicit Protectionism

Answer 4

(1) explicit distinction between states. (2) a motive that is protectionist.
a) General Rule: per se unconstitutional, including local laws that are facially constitutional have have a clear protectionist motivation.

Question 5

EP: Baldwin v. G.A.F. Seelig, Inc. (1935)(p. 271)

Answer 5

(1) NY milk min price to retailers and prohibition of outside milk brought under that amount
(2) Rule: the protectionist measures are a violation of dormant commerce clause powers. State’s cannot regulate with the aim and effect of establishing an economic barrier against competition with the products of another state or the labour of its residents.

Question 6

EP: Bacchus Imports v. Dias (1984)

Answer 6

(1) Hawaii imposes a 20% excise tax on sales of liquor at wholesale, but exempts the tax for locally made pineapple wine and liquor. Hawaii made the exemption to help the local industry and a product that is not likely to do well in the industry.
(2) Held: No state, consistent with the Commerce clause, may impose a tax which discriminates against interstate commerce by providing a direct commercial advantage to local business.

Question 7

2. Discrimination for non-protectionist purposes.

Answer 7

General Rule: Presumptively unconstitutional, but not almost always unconstitutional (health and safety might be a legitimate motivation to tip the scale in the state’s favour).
i) Discriminatory laws may be upheld only if they serve “legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives.“

Question 8

DNP: Dean Milk Co. v. Madison (1951)(p. 274)

Answer 8

i) Law prohibiting sale of milk not processed at approved pasteurisation plants within five miles of Madison’s central square held invalid.
ii) Rule: Measure whether the discrimination inherent in the ordinance can be justified in view of the character of the local interests and the available methods of protecting them.
(1) Reason: reasonable and adequate alternatives are available.

Question 9

DNP: Philadelphia v. New Jersey (1978)(p. 276)

Answer 9

NJ says only a limited amount of landfill space & therefore reserve NJ landfills for NJ rubbish. ii) Unconstitutional

(1) Court must determine whether the law is basically a protectionist measure or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental
(2) The Commerce clause will protect NJ in the future, just as it protects her neighbours now, from efforts by one state to isolate itself in the stream of interstate commerce from a problem shared by all

Question 10

3. Non-discriminatory statute with protectionist motive.

Answer 10

Hunt v. Washington Apple (1951)(p. 274);

Edwards case

Question 11

Edwards case:

Answer 11

Creationism in schools.
i) Statute was passed in a balanced sounding term, but the legislatures who voted for it did so because constituents wanted more religion in schools. The obvious evidence of motive made it not okay.

Question 12

Hunt v. Washington Apple (1951)(p. 274)

Answer 12

i) NC required all apples to be graded USDA or marked not graded. Facially constitutional law, but found to have a disproportionately adverse affect on interstate commerce.
ii) Rule: legislation that is facially constitutional is nevertheless unconstitutional when based upon protectionist motivation.
(1) Case was tainted by a suspicion of protectionist motive, and by the fact that it might have been more expensive for the Washington producers to comply than the North Carolina producers.

Question 13

4. No explicit discrimination/intent, but discriminatory impact

Answer 13

a) Because of background distribution, something that looks innocent can make laws that are neutral on their face unequal upon application. State must justify, but less a presumption against the state as in Philadelphia v. New Jersey.
i) Example: Hotel trying to impose generalized requirements, such as requiring employees to carry guest’s luggage, 50lb in each hand, discriminates against females.

Question 14

5. No protectionism, discriminatory motive or impact, but nevertheless burden on interstate commerce

Answer 14

a) No presumptions, no burdens of proof, but evenhanded balancing. Court will balance degree of burden on interstate commerce with the states interests.
i) Scalia: “it is more like judging whether a particular line is longer than a particular rock is heavy.” How do we do this balancing and is it anything the courts are likely to be good at?

Question 15

No protectionism, discriminatory motive or impact, but nevertheless burden on interstate commerce: Minnesota v. Clover Leaf Creamery (1981)(p. 299)

Answer 15

i) Court upheld a state law that banned non-returnable milk containers made of plastic but permitted other non returnable milk containers (cartons made of pulpwood)
ii) “The court found that the statute does not discriminate between interstate and intrastate commerce and the incidental burden imposed on interstate commerce was not clearly excessive in relation to local benefits.“
c) If it involves instrumentality, may tip the scale.
a) GA and FL studded tire hypo.

Question 16

Instrumentalities of interstate commerce: Regulation on transportation

Answer 16

a) Congress might have more power in controlling the instrumentalities of interstate commerce than it otherwise would. Even after Lopez and Morrison, the courts will be more differential to Congress.
i) Only possible to overcome through strong safety necessities. see e.g., South Carolina v. Barnwell (upheld SC law requiring trucks to be less than 8 feet wide because most roads were no more than 16 feet wide).
ii) Justification: political economy concerns - Decisions made by local bodies will affect non local interests even though non local interests are not represented.

Question 17

Kassel v. Consolidated Freight ways Corp. (1981)(p. 308)

Answer 17

i) Iowa statute that prohibits the use of certain large trucks within the State ii) Rule: Regulations designed for the purpose of public health and safety nevertheless may further the purpose so marginally and interfere with commerce so substantially as to be invalid under the commerce clause.

Question 18

Bibb v. Navajo Freight Lines (1959)(p. 308)

Answer 18

i) Court held invalid an Illinois law which made mud flap regulations in mutual exclusion with the law of Arkansas.
ii) Given that a truck cannot have a mud guard that is compliant with both opposing laws - these local safety measures that are nondiscriminatory nevertheless place an unconstitutional burden on interstate commerce.

Question 19

Exceptions

Answer 19

Subsidies:
What a state cannot do by way of restriction it can do by way of a subsidy
i) Subsidies relate to market participation–TP’s can spend money in ways that benefit themselves.
ii) Note that if a state wants to prohibit it doesn’t cost the state anything, but subsidies cost a lot.