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What is the General Statement Regarding State power over interstate Commerce?
a. The Constitution places both express and implied limitations on the power of the States.
b. The Three Limitations as discussed in class are related and important:
1) The Dormant Commerce Clause;
2) Congressional Preemption AND Consent; and
3) The Privileges and Immunities Clause of Article IV
What is the Definition of the Dormant Commerce Clause ("DCC")?
1. Definition: Even though the power to regulate interstate commerce IS NOT exclusively vested in congress, the courts have concluded that certain forms of state regulation are at odds with the free trade principles inherent in the Constitution’s grant of commerce clause power to the Congress. This creates a constitutional limit on state power referred to as the “dormant commerce clause” OR “negative commerce clause.”
What Question does the Dormant Commerce Clause seek to answer?
In the absence of express congressional action, how
do we identify the line between permitted state
regulation of interstate commerce and
impermissible regulation?
The Course objective: To
explore and understand the complexities of judicial
doctrine that creates this “uncertain and wavering
line.”
What is the Definition of "preemption" and Consent?
1. Definition: “Because of the supremacy clause, federal legislation displaces contrary state. This is called “preemption.” Therefore, preemption is ALWAYS an issue whenever Congress acts (whether it acts pursuant to the commerce clause or some other enumerated power). The flip-side of preemption is consent. Congress CAN authorize state action that would otherwise be impliedly preempted by congressional power.”
The Objective of this Section of Chapter 4 is to
introduce the concepts of express preemption
and implied preemption. We will also explore
the related concepts of “field preemption” and
“conflict preemption.
Discuss the Privileges and Immunities Clause and its relevance to this course (generally).
Although the Privileges and Immunities Clause of
Article IV reaches some of the same issues as the
dormant commerce clause, the two clauses are not
redundant.
The Objective of this Section of Chapter 4 is to
identify the differences in scope between the two
clauses as well as the different judicial tests used to
determine when a constitutional violation has
occurred.
When is the Dormant Commerce Clause ("DCC") "triggered"?
The dormant commerce clause is “triggered”
when (1) a state acts to regulate interstate
commerce and (2) Congress has not preempted
the state regulation with federal regulation.
In the absence of action by Congress, the courts
will nevertheless imply some limits on state
action.
• Why?
i. Concept that there is some ability of the states to act in the best interest of its citizens, HOWEVER, it is limited
If the power to regulate is not express in constitution and there nothing necessarily on point,

Where do we look for interpretation of the framer's intent?
1) Constitutional Convention implied a necessity to enact a system to control states re: their individual interests
2) Historical Driver--default scenario to control states impact of destruction of the free-trade markets in support of their own interests & disallow state interference w/ commerce
a) Economic Theory Rationale
3) Strong National Identity
a) "We're in this together"
i) Promoted by not pitting states against one another in some economic battle
Discuss the overlap of power and how the branches operate when conflicts arise implicating the DCC.
iii. Congress can UNDO a Supreme Court Decision in this area by allowing the States merely to act
iv. Thus, UNDER THE DCC, the court is not necessarily the final word re: states ability to act!!
v. Court gets involved, sets the limits, then Congress can adjust the scope as it decides.
To Determine a State's Ability to Act:

Court sets limits

Congress adjusts Scope
If congress can overrule the court w/ regard to the States' ability to act,
Why have the Court be the initial arbitrator to determine the Scope of the Commerce Clause?
B/C Congress cannot act in every area
Discuss the evolution of the DCC Doctrine:
(Doctrinal History)
Gibbons v. Ogden

Willson v. Black Bird Creek Marsh Co.

Cooley v. Board of Wardens
1) Wilson looked at PURPOSE OF THE STATE LEGISLATION
2) Cooley divides into spheres to determine Scope: (Subject Matter)
a) Local state interest
b) National interests
3) Cooley effectively established 2 separate zones which are fixed and DO NOT OVERLAP
4) This has evolved where currently there is more flexibility, Congress can grant consent for a state to act re: a National matter
Discuss the Modern DCC Doctrine:

What are the 2 "tracks" of the Moderne DCC Doctrine?
Protectionist regulations are presumed to be
invalid
• Nondiscriminatory regulations are presumed
to be valid
What are the steps of the analysis of the Modern DCC Doctrine?

Issue/Conclusion:
Start: Does the state OPENLY DISCRIMINATE against interstate commerce?
- Is the law facially discriminatory?
- If so, can it pass strict scrutiny test?
See the flow chart for a step-by-step decision tree breakdown.
What are the exceptions to the Dormant Commerce Clause?
-Quarantine
- Compensatory Tax Exception
(Not treated as discriminatory)
- Public Function Exemption
- State as a Market Participant
Absent an exception to the DCC, how do we analyze a State's Law to determine Constitutionality?
Analyze the purpose to see if it is a legitimate state
interest.
• Analyze the discriminatory effect to see if there is a less
discriminatory way to achieve the purpose.
• What was the purpose?
What does the Pike balancing Test Consider?
Burden on interstate commerce

versus

State Benefit
Under the Pike balancing test, the burden is on the party challenging the statute to show that it imposes too great a burden on commerce.
What power is granted under the Tenth Amendment?
The power to regulate for the general health, safety, and welfare of state citizens is reserved to the states under the Tenth Amendment, for example, the authority to regulate the setting of auto insurance rates falls within that police power. A state regulation exercised under the police power is valid provided that the regulation is not pre-empted by a valid federal law in conflict with it, does not exceed the bounds of state power over interstate commerce, and does not violate individual constitutional rights protected by the Constitution.
he state has authority under its police power to regulate the insurance industry for the general health, safety, and welfare of its citizens, and the state need only prove a rational basis for the rate-setting restriction.
When does a violation under the 14th Amendment Due Process Clause arise?
Any state regulation that discriminates on the basis of a suspect class or against a fundamental right violates Fourteenth Amendment equal protection, unless the state can show a compelling government interest to do so under the strict scrutiny test.
When can a state regulation be challenged? What is the Rule:
Any state regulation that discriminates on the basis of a suspect class or against a fundamental right violates Fourteenth Amendment equal protection, unless the state can show a compelling government interest to do so under the strict scrutiny test.
What are the three Prongs of Commerce Regulation?

- When Congress can regulate

(DCC)
1) The Channels of interstate commerce ;
2) The Instrumentalities of interstate commerce;
3) Intrastate activities that have a "substantial effect" on interstate commerce/
1) the movement of persons or objects in interstate commerce (Heart of Atlanta (motels under the civil rights act)

2) e.g. transportation or communication methods (The Shreveport Rate case- persons or things in interstate commerce such as railroads);

3)Q: How will we regulate intrastate (internal) activities with interstate effects: (Jones & Laughlin Steel, Darby)
What is the "Big Picture" of this course?

(The overview of Constitutional Issues of Debate as studied thus far)
Necessary and Proper Clause versus the Commerce Clause:


the general Welfare & Regulating people from harm grants the power to the states through police power:
- Must be promoted
-Must be a specific enumerated power congress acts with in place; CONVERSELY
states may act as they see fit.
STRUGGLE: between the two interests, and the balance of power among the entities and when and where it is appropriate and within the scope of power to regulate; AND whether this reasoning to act falls under the umbrella of enumerated powers.

the Necessary & Proper clause, as others are, is generally pretty specific. the one exception is the Commerce Clause.
The Commerce clause: What is the proper role of the government?

This clause has been broad and often the issue of the debate because it allows more flexibility to make an argument for regulation.
What is the key question when analyzing Constitutionality under the Commerce Clause?
What is the proper role of the government with re: to the issue?
1) IF
you believe that Congress and the federal government should have a role in whatever the issue is:
THEN
there is an argument to be made to allow the commerce clause to enable regulation of the matter.

2) IF
the government is getting too large and topping the balance of power by intruding on areas that are historically handled by the states, there are concerns and this may warrant an argument against intrusion by way of the commerce clause.

**This is the crux of the debate**
Justice Kennedy's focus on Federalism:

What is the purpose of the Federalism doctrine & Why is it important--more than just a "truism"?
- The purpose as established by the founders & framers of the constitution was to create a sustem of federalism ONLY giving enumerated powers where the branches of government as between the states serve as checks on each other; to protect us from tyranny.

- It is important to understand the enumerated power because it keeps the states acting merely in consideration of their own interests. (w/ disregard to the effect of the nation as a whole)
What does J. Kennedy say about What the right level of deference is?

What are the Limits EVEN WHERE Congress has said there is a "substantial effect?"
1) Federal v. State power and whether Congress has overstepped its boundaries?

2) If one accepts the majority's opinion that the court should step in to set limits even where Congress has said there was a "substantial effect", what are those limits?
When analyzing Commerce Clause Questions under the general rule, what are two possible nuances?
1) How do we determine "substantial effect"

2) What is or is not "Commerce"?
Congressional Power to Tax:

Does it matter why Congress enacts a particular tax?
- NO, Congress' Motives are irrelevant

- A tax IS NOT invalid just because it has a regulatory effect
What is the distinction between regulatory and revenue raising taxes?
THE DISTINCTION NO LONGER HAS ANY PRACTICAL SIGNIFICANCE

( OR RELEVANCE)
Discuss Spending Power (generally):
Congress has the power to spend for the general welfare beyond the spending necessary for specific objectives BUT

IT MAY NOT regulate Except in accordance with its enumerated powers.

- IF the spending is entirely regulatory,

THEN it needs to be linked to some enumerated power
Congress can act under the spending power to encourage UNIFORMITY in drinking ages EVEN IF Congress cannot directly regulate drinking age.
What are the Limitations on the ability of Congress to attach conditions to federal spending?


(Congressional Spending Power)
1) The spending serves the general welfare;

2) The spending is CLEARLY & UNAMBIGUOUSLY EXPRESSED so that states can make a knowing choice;

3) Condition is related to a legitimate federal interest in "particular national project or program"
What is the Major Question being considered in disputed arising re: exercise of Federal power over state activities?
Is Congress overreaching by an over-powerful exercise of an enumerated power?
Legislative Power:

Discuss the power granted under the Constitution to Congress.
The Constitution grants Congress a number of specific powers, many of which are enumerated in Article I, Section 8. It also grants Congress auxiliary power under the Necessary & Proper Clause.
Define Necessary & Proper "Power"

(Legislative Power)
The Necessary & Proper Clause grants Congress the power to make all laws necessary and proper (i.e. appropriate) for carrying into execution ANY power granted to ANY branch of the federal government.
Example: Congress has the power to charter banks since that power is appropriate to executing Congress's enumerated powers to tax, borrow money, regulate commerce, etc. [McCulloch v. Maryland]
Discuss the basis of power relevant to the Necessary & Proper Clause:
The necessary & proper clause is not itself a basis of power, it merely gives Congress power to execute specifically granted powers. Thus, if a question asks: what is the best source of power for a particular act of Congress, the answer should not be the necessary & proper clause, standing alone.
Limitation: Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution.
Discuss the Taxing Power

(Legislative Power)
Congress has the power to lay and collect TAXES, imposts, and excises, BUT they must be uniform throughout the US [Art I, Section 8] Capitations or other direct taxes must be laid in proportion to the census [Art I, Sec. 9, Cl, 4] and Direct taxes must ve apportioned among the states [Art. I, sec 2, cl, 3].
a. Uniformity

b. Direct Taxes--Must be apportioned

c. Export Taxes Not Permitted

d. Taxes Are Generally Valid
What are the Sub-Rules of Congressional Taxing Power:
a. Uniformity

b. Direct Taxes--Must be Apportioned

c. Export Taxes Not Permitted

d. Taxes Are Generally Valid
What is the "Uniformity" Requirement of Congressional Taxing Power?
REquirement of uniformity in the levy of indirect taxes (generally, this means any kind of "privilege" tax, including duties and excises) has been interpreted by the court to mean geographical uniformity only--i.e., identical taxation of the taxed Article in every state where it is found.
[Fernandez v. Weiner]
What is the "Direct taxes apportionment" Requirement of Congressional Taxing Power?
"Direct Taxes MUST be apportioned"

A "direct" tax (imposed directly on property or on the person) has seldom been employed by Congress because of the cumbersome apportionment requirement; taxes on income from real or personal property were initially held "direct" by the Court, byt the resulting need for apportioning such taxes was obviated by the sixteenth Amendment (income tax amendment)
What is the "Lack of permission of export taxes" Rule of Congressional Taxing Power?
"Export Taxes NOT permitted"
What is the "General Validity of Taxes" Rule of Congressional Taxing Power?
Absent a specific restriction such as those articulated; be very hesitant to rule against a tax measure on an exam.

Rule: A tax measure will be upheld IF:
- it bears some reasonable relationship to revenue production; OR

- Congress has the power to regulate the taxed activity
Example: Special excise tax levied on dealers in illegal narcotics is valid because it raises revenue.
Discuss Congressional Spending Power:

(Legislative Power)
Congress may spend to "Provide for the General Defense and the General Welfare" [Art. I, Sec. 8]

This spending may be for any public purpose--not merely the accomplishment of other enumerated powers.

However, nonspending regulations are not authorized
Remember:The Bill of Rights still applies to this power, i.e., the federal government could not condition welfare payments on an agreement not to criticize government policies.
Discuss Congressional regulation through spending:

(Legislative spending Power)
Note: Congress can use its spending power to "regulate" areas, even where if otherwise has no power to regulate the area, by requiring entities that accept government money to act in a certain manner (i.e., attaching "strings" to government grants).
Discuss Congressional Commerce Power:

(Legislative Power)
Article I, Section 8, Clause 3 empowers Congress to "regulate commerce with foreign nations and among the several states, and with the Indian tribes."
Definition of "Commerce"
1) Includes basically all activity affecting two or more states;

2) Includes Transportation or Traffic
1) Chief Justice Marshall's Definition of Commerce: " every species of commercial intercourse...which concerns more states than one: and included within the concept virtually every form of activity involving or affecting two or more states."

[Gibbons v. Ogden]

2) The Court has consistently re: transportation or traffic as commerce, whether or not a commercial activity is involved.
Is Vehicular Transportation required to qualify as commerce ?
NO. Vehicular transportation is not required. ANY transmission across state lines, such as electricity, gas, telegraph, telephone, TV, radio and mail transmission (including educational materials and sale of insurance), will continue interstate commerce.
Discuss
"Substantial Economic Effect":


(Commerce Power)
The SC has sustained congressional power to regulate any activity, local or interstate, that wither in itself or in combination with other activities has a "substantial economic effect upon," OR "effect on movement in," interstate commerce.
Example: Classic case is the Court's holding that Congress can control a farmer's production
Discuss Regulation of Commerce by Congress (generally):

(State Regulation OR Taxation of Commerce)
Congress's power over interstate commerce is "plenary and pervasive. However, the power is nonexclusive--it is shared with the states to some degree.
(State Regulation OR Taxation of Commerce):

Whose power controls? Congress' or the States'?
(1/2)
1) The Power of Congress to Supersede or "Preempt" State Regulation:

The Supremacy Clause makes federal law supreme.

Thus, if a state law regulating commerce conflicts with federal law, the state law will be void.

Moreover, if Congress desired, it may preempt an entire area of regulation, thus preventing states from making any laws concerning the area preempted.
(State Regulation OR Taxation of Commerce)

(2/2)
2) The Power of Congress to Permit or Prohibit State Regulation:

Although Congress's commerce power in nonexclusive, the state' power to regulate interstate commerce is restricted by the negative implications of the commerce Clause, even absent federal legislation--the states generally may NOT discriminate against interstate commerce.

Nevertheless, Congress is not so restricted; it may allow the stated adopt legislation that would otherwise violate the commerce Clause.
Example: A state imposed a 3% tax on out-of-state insurance companies for all premiums received from insuring residents of the state. NO similar tax was placed on the in-state insurance companies. Although such a tax would ordinarily be held invalid under the commerce Clause--because it discriminated against an act permitting the states to regulated insurance in any manner, as long as the state regulation did not conflict with a federal statute specifically regulating insurance. [Prudential Ins. Co, & NE Bancorp]
*Note* Congress may alos prohibit the states from adopting legislation that would otherwise be permitted under the Commerce Clause.
What is the Limitation on Power of congress to Permit or Prohibit State Regulation?

(State Regulation OR Taxation of Commerce)
Limitation:

While Congress may permit states to adopt regulations that would otherwose biolate the Commerce Clause, such consent will not obviate otherconstitutional objections to the regulation. Thus, Congress may not give states the power to restrict civil liberties.
Discuss State Regulation of Commerce in the Absence of Congressional Action:
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation:
1) Does Not Discriminate against out-of-state competition to benefit local economic interests; AND

2) is Not Unduly Burdensome (i.e., the incidental burden on interstate commerce does not OUTWEIGH the legitimate local benefits produces by the regulation).

**If either test is not met, the regulation will be held void for violating the Dormant Commerce Claus
Discuss "Discriminatory Regulations" under the Dormant Commerce Clause:
1) Generally Invalid:

State of Local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.
Examples:
1) Regulations Protecting Local Businesses;

2) Regulations Requiring Local Operations

3) Regulations Limiting Access to In-State Products;

4) Regulations Prohibiting Out-of-State Wastes.
Regulations Protecting Local Businesses:

(Discriminatory Regulations)
Rule: Laws designed to protect local business against interstate competition generally will be invalidated.
Examples:

a. A state cannot place a surcharge on out-of-state milk to make that milk as expensive as ( or more expensive than) milk produced in that state.

b. A state cannot exempt local businesses or products from taxation or regulation that it seeks to apply out-of-state businesses or products that come into the state.

c. A law requiring all locally produced solid waste to be processed at a local waste processing business was held to violate the Commerce Clause because it was a trade barrier against competition from out-of-state waste processors. [C.A. Carborne, Inc]
Regulations Requiring Local Operations:

(Discriminatory Regulations)
Rule: If a state law requires a business to perform specific business operations in the state to engage in other business activity within the state, the law will normally be held invalid as an attempt to discriminate against other states where the business operations could be performed more efficiently.
Example:

If a state required all businesses that produce melons in the state and all businesses that purchase melons from local producers to wrap or package the melons in the state (before the melons were exported from the state), the law would be invalid as an attempt to force businesses to locate their packaging operations in the state.
Regulations limiting access to In-State Products:

(Discriminatory Regulations)
Rule: A state law that makes ir difficult or impossible for outof-state purchasers to have access to in-state products ( other than products owned by the state itself) is likely to be held invalid.
Examples:

a. A state cannot prohibit in-state owners of "ground water" from selling and exporting the water they own to persons in other states.

b. A state cannot require in-state companies to sell products at a lower price to on-state residents than to out-of-state residents.
Regulations prohibiting Out-of-State Wastes:

(Discriminatory Regulations)
Rule: A state may not prohobit landfill or waste disposal fadilities from accepting out-of-state garbage or waste or surcharge such waste [Philly v. NJ; Chem Waste Mgt. v. Hunt] UNLESS

Congress authorizes such discrimination [NY v. US: federal statute allowing states to impose a surcharge on certain out0of-state nuclear wastes upheld]. This rule applies even to hazardous wastes. [Oregon Waste v, Dept. of Enviro Quality]
Necessary to Important State Interest Exception:

(Discriminatory Regulations--Exceptions)
Rule: A discriminatory state or local law may be valid if it furthers an important, non economic state interest (e.g., health or safety) and there are no reasonable alternatives available.
Example: A state could prohibit the importation of live baitfish (such as minnows) into the state because the state could demonstrate that it had no other way of effectively avoidingthe possibility that such baitfish might bring certain parasites into the state or, in other ways, have a detrimental effect on the state's wild fish population. [Maine v. Taylor]

However, a state could not prohibit the export of live baitfish to out-of-state purchasers because the sale of such fish to out-of =state purchasers would not impair any interest of the state, except the interest of protecting local purchasers of baitfish from competition by out-of-state purchasers. [Hughes v. OK]
State as Market Participant Exception:

(Discriminatory Regulations--Exceptions)
Rule: the Commerce Clause DOES NOT prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies).
Examples:

a. A state may purchase scrap automobiles from its citizens at a higher-than-market rate and refuse to pay nonresidents the same amount. [Hughes v. Alexandria]

b. Under the market participant exception to the Commerce Clause, a city may require that all construction projects funded by the city be performed by contractors using a workforce composed of at least 50% bona fide residents of the city. [White v. Massachusetts]
What are the two limitations of the State as Market Participant Exceptions to the Dormant Commerce Clause?

(Discriminatory Regulations--Exceptions)
Limitation #1: Interstate Privileges and Immunities Clause:

Rule: While a state or local government does not violate the Commerce Clause by preferring its own citizens while acting as a markey participant, there is no market participant excoption to the Interstate Privileges and Immunities Clause. thus, a tegulation that interfered with private sector employment, such as the examples gives for state as market participant b., may violate the Privileges and Immunities Clause UNLESS the regulating entity can show a substantial justification for the regulation.
Limitation #2: "Downstream" Restrictions:

Rule: while a state may choose to sell only to state residents, it may not attach conditions to a sale that would discriminate against interstate commerce.

Example: Alaske violated the Commerce Clause when it imposed a contractual requirement on purchasers of state-owned timber that the timber be processed in Alaska before being shipped out of state [S-Central Timber development--plurality opinion]
Favoring Government Performing Traditional Government Functions Exception:

(Discriminatory Regulations--Exceptions)
Rule: The SC applies a more lenient standard when a law favors government action involving the performance of a traditional government function (such as waste disposal) . Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
Examples:

a. A county flow control ordinance that favored a state-created public waste facility by requiring waste haulers to bring the wastes to the state facility rather than to private facilities is valid. [United Haulers v. Oneida]

b. A state may exompt from state taxation interest on its own bonds and bonds of its municipalities while taxing bonds of other states and their subdivisions. [DOR v. Davis: Issuing debt securities to pay forpublic projects is a 'quintessentially public function" with venerable history]
Discuss the Balancing Test Used when considering Nondiscriminatory Laws:

General Rule:

(Nondiscriminatory Laws)
Rule:
What is the test for determining if someone is an "officer of the United States"?
○ An officer of the US is "any appointee exercising significant authority pursuant to the laws of the US" [Buckley v. Valeo]
Is congress's power to authorize "interbranch appointments unlimited?
○ No. Congress cannot impair the constitutional functions assigned to other branches or there was otherwise some "incongruity" in the nature of the appointment
What is the test for determining if someone is an "officer of the United States"?

(The Appointment Power)
○ An officer of the US is "any appointee exercising significant authority pursuant to the laws of the US" [Buckley v. Valeo]
Distinguish between "Principal" officers and "Inferior" officers

(The Appointment Power)
- "Principal Officers must be appointed by prez and confirmed by Senate
- "Inferior" officers are appointed by the Prez and confirmed by the Senate (default rule)
○ UNLESS Congress specifies they are to be appointed by Prez alone or by courts or heads of departments
Can Congress appoint Executive Officers?
NO!
Does Congress Have ANY Removal Power?
○ NO Congress does not have any power to remove executive officers

EXCEPT by Impeachment.
What is the categorization of the office of Independent Counsel?
Office of Independent Counsel is merely that of an

"Inferior Officer"
What level of power does the Appointments Clause grant Congress?
The Appointments clause gives Congress discretion to vest appointments "as they seem Proper"
Is congress's power to authorize "interbranch appointments unlimited?

(Appointments Clause)
NO.

Congress cannot impair the constitutional functions assigned to other branches or there was otherwise some "incongruity" in the nature of the appointment
What Factors did the Court consider in concluding that the independent counsel is an "inferior" officer?
Ideas of Tenure duration and duties
[Morrison v. Olson]
What are the 4 Prevailing Views of Executive Power:
□ NO Inherent Presidential Power (or very little if any)
□ Some Limited Inherent Executive Power
® President can act even if w/o express statutory authority
® So long as not adverse to another branch or its duties
® Cannot "usurp" constitutional power of another branch of government
□ Some Legislative Accountability
□ Broad Inherent Executive Authority
® Prez can do anything UNLESS it specifically violates some express provision
Is a tax automatically invalid?
A TAX INVALID IF IT IS A DISGUISED PENALTY AND THE PENALTY IS NOT CONNECTED TO AN ENUMERATED POWER,
Is a tax invalid merely because it has a regulatory effect?
- NO, the tax is not invalid JUST BECAUSE it has a regulatory effect
○ Every tax has some regulatory nature/function
○ Tendency to discourage the activity taxed
State Regulation of Interstate Commerce:

Questions in Analysis:
(1/4)
Does the state regulation affect an activity addressed by federal legislation?

If YES....Side 3

If NO....Card 2, Q2
If Yes: INVALID state regulation if federal law preempts the field OR state law conflicts with the federal law.

CONVERSELY,

VALID state regulation if the federal law authorizes the state law.*

*Note* Of course, Congress has NO power to authorize legislation that would violate other constitutional provisions, such as the Privileges and Immunities Clause of Article IV.
State Regulation of Interstate Commerce:

Questions in Analysis:

(2/4-- If NO above)
Does the State Regulation discriminate against interstate commerce?

If YES....Side 3

If NO....Card 3, Q3
INVALID...UNLESS:

(i) It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives; OR

(ii) The state is acting as a market participant; OR

(iii) It involves government action regarding the performance of a traditional government function
State Regulation of Interstate Commerce:

Questions in Analysis:

(3/4-- If NO above)
Does the State regulation burden interstate commerce?

If YES....Side 3

If NO....Card 4, Q4
INVALID. UNLESS:

the state's interest in the regulation outweighs the burden on interstate commerce
State Regulation of Interstate Commerce:

Step in Analysis:

(4/4-- If NO above)
VALID state regulation.

[STOP: Analysis Complete!]
REGULATION OF INTERSTATE COMMERCE:

{Bar Exam Approach}
Whenever a bar exam question involves a state regulation that affects the free flow on interstate commerce, you should proceed as follows:
FIRST> See if the question refers to any federal legislation that might be held either to:

(supersede the state regulation or preempt the field; OR

(ii) authorize state regulation otherwise impermissible.

SECOND> If neither of these possibilities is dispositive of the question, ask if the state legislation discriminates against interstate or out-of-state commerce or places an undue burden on the free flow of interstate commerce.

- If the legislation is discriminatory, it will be INVALID Unless

(i) it furthers an important state interest AND there are no reasonable nondiscriminatory alternatives, OR

(ii) the state is a market participant.

- If the legislation does not discriminatie BUT burdens interstate commerce, it will be INVALID if the burden on commerce outweighs the state's interest.

*Consider whether there are less restrictive alternatives.*
Discuss the Dormant Commerce Clause (generally):
COMMERCE AND THE STATES: THE DORMANT COMMERCE CLAUSE
§5.01 The Purpose of the Dormant Commerce Clause [117-119]
The Dormant Commerce Clause seeks to achieve two purposes. First, it seeks to create a
national economic market by preventing states from imposing barriers to trade. Second,
it seeks to foster political cohesion by inhibiting states from imposing reciprocal barriers.
The Dormant Commerce Clause addresses the situation in which Congress has not
regulated some area which is within the Commerce power. Where Congress is silent,
what, if any, barriers are there to state regulation?
The Dormant Commerce Clause is not really a separate clause in the Constitution. It
simply refers to a body of constitutional jurisprudence which sets parameters for state
regulation when Congress has not regulated an area within the Commerce power. The
Dormant Commerce Clause is somewhat controversial and constitutional arguments can
be invoked to oppose or defend it. Some form of Dormant Commerce Clause has existed
for most of American history.
Discuss the Modern approach to the Dormant Commerce Clause Analysis:
he Court has continued to adopt an intermediate approach which
sometimes allows and sometimes prohibits state regulation. In general, if a state statute
discriminates against commerce on its face, purpose or effect, it is subjected to strict
scrutiny and is found unconstitutional unless the state can justify it as serving a
compelling state purpose in the least restrictive way. If the state statute does not
discriminate, it is measured against a more lenient balancing test which asks whether the
state’s health or safety interest is clearly outweighed by the burden on commerce.
Like Cooley, this test is a balance between two conflicting ideals, Cooley re: the railroad industry pre-dates this analysis and helped form its structure.`
Discuss "Discriminatory Laws" (generally):
Strict scrutiny is applied where the state seeks simply to protect the economic interests of
its citizens at the expense of outsiders. When the Court detects such economic
protectionism, the state statute is deemed per se invalid.
States generally do not articulate such a protectionist purpose on the face of a statute or in
legislative history. Where, however, a state cannot point to a legitimate state purpose for
the statute or cannot show the absence of a nondiscriminatory alternative way to achieve
its purpose, the Court infers that the true purpose was protectionist.
Although the impact of state legislation on instaters and out-of-staters may be relevant to
the analysis, it is not dispositive. The fact that there are out-of-state losers or instate
beneficiaries does not mean the state statute necessarily fails. The Dormant Commerce
Clause serves to protect the interstate market, not particular entrepreneurs. See Exxon
Corp. v. Governor of Maryland, 437 U.S. 117 (1978).
Statutes subject to strict scrutiny are almost invariably invalidated.
Discuss the Historical Evolution of the Dormant Commerce Clause:
[1] Justice Marshall’s Views
In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), Chief Justice Marshall
indicated some sympathy for the view that the Commerce Clause conferred an
exclusive power on Congress such that states could not regulate within the
Commerce power even with Congress was dormant. He did not, however need to
resolve the issue in Gibbons. Subsequently, he upheld state police power
legislation in instances when it came within the Commerce power.

[2] Local Pilot Case
Cooley v. Board of Wardens, 53 U.S. 299 (1851), upheld a Pennsylvania statute
requiring vessels to use a local pilot. Cooley took an intermediate course between
those who argued that the Commerce Clause precluded any state action within its
bounds and those who argued that absent congressional action, states could
regulate without restraint within areas covered by the Commerce power. Cooley
held that states could not regulate matters needing a uniform national approach
but could regulate local matters.
[3] Railroad Regulation
Although Cooley was followed for a time, other approaches emerged to address
railroad cases. The Court distinguished between legislation which affectedcommerce directly (which only the federal government could regulate) and that
which affected commerce indirectly (which states could regulate).
[4] Towards a Balancing Test
Ultimately, in 1945, the Court used a balancing test to determine whether state
safety legislation violated the Dormant Commerce Clause.
Discuss the Pike Balancing Test (generally):
Pike Balancing Test [126-127]
The Pike balancing test takes its name from Pike v. Bruce Church, Inc., 397 U.S. 137
(1970). It provides: “Where the statute regulates even-handedly to effectuate a legitimate
local public interest, and its effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is clearly excessive in relation to
the putative local benefits.”