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Question 1

What is the source of state power?

Answer 1

General police power to enact regulations for the benefit of residents

Question 2

What is the state’s power to regulate commerce?

Answer 2

States have broad police powers to legislate for the health, morals, and well-being of their citizens.

Question 3

What are constitutional powers that are exclusively national, and so state regulation is not allowed on these topics?

Answer 3

War power and foreign affairs

Question 4

What is the dormant commerce clause?

Answer 4

This comes from the commerce clause. The constitution grants Congress plenary power to regulate commerce among the states, and has a negative aspect that denies states the power to unjustifiably discriminate against or burden interstate flow of commerce.

This is a negative power that allows state legislation to be struck down because it infringes on Congress’ power. Any state action that poses an excessive burden on interstate commerce relative to the state’s legitimate interests or discriminates against interstate commerce will be struck down, especially if it is motivated by economic protectionism

Question 5

What is the purpose of the dormant commerce clause?

Answer 5

It prevents a state from jeopardizing the welfare of the nation as a whole by placing burdens on the flow of commerce across its borders that commerce wholly within its borders would not bear.

Question 6

States can regulate interstate commerce, but if the motive is to do what, the regulation is per se unconstitutional?

Answer 6

To grant an economic advantage to local interests at the expense of interstate interests [AKA: economic protectionism].

Question 7

What is the gist of the dormant commerce clause?

Answer 7

If a state law doesn’t discriminate on its face or as applied, it is usually upheld unless it interferes with commerce in a way that is clear and the local interest is not substantial.

If discrimination is present, there cannot be any other reasonable method of safeguarding a legitimate local interest.

If the law has no other purpose than favoring local industry, the balancing test shouldn’t be used, so the point of the regulation is illegitimate

Question 8

Under the dormant commerce clause, if Congress enacts valid legislation in an area that the states have also regulated, and Congress intends to occupy the field, what happens?

Answer 8

Supremacy clause applies. The discriminatory state law only survives if it advances a legitimate local purpose that cannot be adequately served by reasonable non-discriminatory alternatives

Question 9

What is the vacuum theory under the dormant commerce clause?

Answer 9

There are no areas that NEITHER Congress nor the states can regulate. An activity either substantially relates to interstate commerce [so Congress can regulate it] or doesn’t [then states can regulate it]

Question 10

What are the elements of the dormant commerce clause?

Answer 10

– discrimination against interstate commerce
– undue burden
– balancing approach

Question 11

Under the dormant commerce clause if a state restriction discriminates against interstate commerce by giving differing treatment to in-state and out-of-state economic interests that benefit the in-state and burden the out-of-state, what usually happens?

Answer 11

It is per se invalid in all but the narrowest circumstances. It will survive only if it advances a legitimate local purpose that cannot be adequately served by reasonable non-discriminatory alternatives

Question 12

What is involved in the element of “discrimination against interstate commerce” that is an element of the dormant commerce clause?

Answer 12

Regulations explicitly treat in-state and out-of-state interests differently. If the state regulates evenhandedly to figure out the legitimate local public interest, and the effects on interstate commerce are only incidental, it is upheld unless the burden on commerce is clearly excessive in relation to local benefits

Question 13

What is involved in the undue burden element of the dormant commerce clause?

Answer 13

Law imposes an undue burden on interstate commerce. This applies the undue burden test that states that if the burden on interstate commerce outweighs the local benefit by regulation, then it is an undue burden. But when the government interest’s benefit outweighs the burden, the regulation is upheld

Question 14

What is the question to ask under the undue burden element of the dormant commerce clause?

Answer 14

Whether the law discriminates or imposes an excessive burden on interstate commerce.

Question 15

Generally under the dormant commerce clause tariffs and protectionist acts are treated in what way?

Answer 15

They are nearly always struck down

Question 16

What happened to the Illinois law under the dormant commerce clause that mandated that certain mudflaps be used on hauling trucks?

Answer 16

This was held to retard free flow of interstate traffic and the mudflaps had no safety advantage, so it was held to be a significant interference with interstate commerce

Question 17

What happened with the Arizona cantaloupes case under the dormant commerce clause?

Answer 17

The financial burden was held to be excessive and related to the putative local benefits

Question 18

Do regulations that prohibit the sale of a commodity that’s created in a certain way without regard to whether it was produced in state or out of state discriminate against out of state commerce under the dormant commerce clause?

Answer 18

No, but they may have a significant undue negative impact on interstate commerce

Question 19

Does the percentage of product that a plaintiff sells to certain states determine whether or not there was discrimination under the dormant commerce clause?

Answer 19

No, but it may speak to the financial cost to the plaintiff of the rule

Question 20

Does the dormant commerce clause protect the interstate market itself?

Answer 20

Yes, and not the interest of people trading in commerce.

Question 21

Does discrimination based on residency pose a dormant commerce clause issue?

Answer 21

No because commerce is not involved.

Question 22

Is it possible under the dormant commerce clause for a state to project its legislation into another state by regulating the price to be paid in that other state for goods that are purchased there?

Answer 22

No

Question 23

If there’s no protectionism and no discrimination under the dormant commerce clause, what must the state’s regulation be to not be allowed?

Answer 23

An undue burden on interstate commerce

Question 24

If Michigan put a fee on truckers that were doing intrastate commerce, does the dormant commerce clause apply?

Answer 24

No because interstate is not affected. The same would be true for toll roads that are totally within the state because everyone who crosses pays and what is taxed as an activity entirely within the state