Con Law 5

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lxxvii. Distinguishing Discriminatory from Non-discriminatory state laws

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How does H.P. Hood & Sons v. Du Mond (“consumer protection law forbidding shipping milk out of state”) demonstrate WHAT about, and WHY we have a dormant commerce clause? Facts: 1. Dumond D , a New York Agriculture commissioner, denied hood (P), a Boston milk distributor, a license to build a new milk distribution factory, and hood challenged the denial based on the dormant commerce clause.

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4. A facially discriminatory state statute: discriminates on its face. 2. Why do we have a dormant commerce clause? a. A state cannot unduly burden interstate commerce. b. Framers’ intent i. It was obvious at the time of the creation of the Constitution that interstate commerce needed to be centralized. 1. There was a need to bring harmony and seek necessary common interests for conducting trade amongst states. c. Free trade is a good economic reason for society. i. The winners gain more than the looser lose; therefore, the winners can compensate the losers. d. McCulloch v. Maryland i. If we have one state imposing a regulation that would be a burden upon an industry, affecting consumers from other states, those consumers DO NOT have political representation from the state imposing that burden. e. Since Congress cannot deal w/ every issue, the courts should be used to resolve these issues.

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There are three different ways to show that the state law is discriminatory: Ask whether or not a law is discriminatory ___??-3 types-??___

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a. On its face i. You can’t sell cars in CA if it’s from another state. 1. If it said this, this law would almost always be unconstitutional. 2. It will apply something akin to strict scrutiny. b. In effect i. One car manufacturer in CA, making cars out of fiber glass. So CA can say if you want to make cars in CA they have to be made out of fiber glass. ii. A court may hold that CA law favors in state residents; or that it favors CA manufacturers b/c CA has no reason for making fiber glass cars but more of a way to trick the courts. c. In purpose i. Even if a state law is not discriminatory, there is a balancing act b/w real legitimate state concerns and the burden this creates on interstate commerce. 1. Sometimes a state law will win and other times it will lose.

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How does City of Philadelphia v. New Jersey demonstrate the dormant commerce clause? Facts: A Jersey law prohibits outside waste from coming in. Landfill operators and other States that had agreements w/ them were affected.

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c. If a state regulation restraints the flow of commerce by discriminating against out-of-staters, the Commerce Clause will invalidate the state law even if Congress has not dealt w/ this matter. i. If NJ doe not allow waste to come in, other states may retaliate against it in the future. The Court seeks to prevent that. ii. There needs to be reciprocity. iii. The state interest is not sufficiently compelling for the Court.

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How was C & B Carbone (“taking waste through local transfer station before going out of state; charged fees”) and EXCEPTION to the dormant commerce clause? Facts: a. Local Ordinance, which required all waste to processed at local waste transfer facility before leaving town, was challenged as violating the commerce clause.

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b. A law may be discriminatory b/c it keeps outside competition and furthers the local interest in financially; and therefore is unconstitutional. i. Here, you could not use an out of state processing station. 1. You had to use the local processing station. ii. A local financial interest is not a compelling justification to allow a state law to be discriminatory but valid. 1. Exception to DCC a. If the state itself ran the waste facility it would become a market participant—allowing the state to discriminate.

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How did Hunt v. Washington (“Wash apples shipped to NC; higher standard than USDA but NC only permits USDA grading”) demonstrate: [DISCRIMINATORY EFFECT] ? Facts: a. North Carolina law was challenged by Washington State Apple Advertising Commission P on ground that it had a discriminatory impact, which caused it to violate commerce clause.

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b. Although a state law may not be discriminatory on its face, by having the law apply to everyone, the Court may still strike it down b/c it discriminatory effect b/c the law burdens interstate commerce. i. The state law has the effect of not being able to identify apples coming from Washington b/c they would have to be under the USDA grading instead of their own. ii. Commerce will be impeded b/c Washington sends so many apples as a result of the reputation that was attained by its coveted grading.

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How did Exxon v. Maryland demonstrate that Not every discriminatory impact violates the DCC?? Facts: a. Maryland D Law, which prohibited petroleum producers and refiners from operating gas stations within the state, did not violate commerce clause.

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b. Holding: Not every discriminatory impact violates the DCC i. The law barred Exxon from running gas stations. ii. The law clearly has a discriminatory effect. 1. The only people who are burdened are out of staters, and the people who benefit are instaters—most of these stations were owned by locals. iii. But maybe this was a strange industry—the Court doesn’t explain itself.

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How did West Lynn Creamery get struck down because it had a [DISCRIMINATORY IN PURPOSE]? Facts: 1. Massachusetts D law which imposed a tax on in-state milk sales, with the proceeds paid to local dairy farmers, was challenged on ground it violated the Commerce Clause. 2. Facts: Mass applied a tax to everyone selling milk. But the revenue from that tax was given back to instaters only

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3. If a state implements an even handed tax regulation that would affect everyone and attaches a benefit program for instaters only, this economic protectionism and in violation of DCC b/c the law has a discriminatory purpose. a. The tax was created to protect local dairies—legislators said so on the floor. 4. The Court may have ruled otherwise if the state had pulled money out of some other unrelated program to the tax and given it to local dairies.

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How was the state statute still upheld in State of Minnesota v. Clover Leaf Creamery [DISCRIMINATORY PURPOSE] Facts: 1. Minnesota D law banning the sale of milk in plastic non returnable, no refillable containers was challenged on the ground that it had a discriminatory purpose.

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2. If a state law is even handed—by prohibiting everyone from using plastic milk containers—and creates an incidental burden on interstate commerce but is not “clearly excessive to its local benefits, the law will be upheld. a. The law has a valid environmental purpose; while it has an incidental benefit for instate paperboard industry (not a huge disc impact). 3. Strict scrutiny will apply if it is proven that a state law is discriminatory on its face, in effect, or in purpose. a. Meaning the state has to show that its law is necessary to achieve a legitimate state purpose—absolutely essential—and no other way or alternative to achieve this purpose.

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Why was the state statute struck down in Dean Milk v. City of Madison, Wisconsin. Facts: 1. Dean Milk P, upon being denied license to sell milk in Madison D because its pasteurization plants were more than 5 miles away, challenged city’s milk plant ordnance on grounds that it violated the Commerce Clause. 2. Facts: law made it illegal to sell milk as pasteurized if it was not processed and bottled w/in 5 mile radius of central square Madison.

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3. A state law will violate the CC b/c it creates an undue burden on interstate commerce by discriminating against out of staters when there is an alternative way of achieving the same intended legitimate goal. a. Alternative: Although the legitimate purpose of the state law was to protect the safety of the population, safe milk could be found outside of the five mile radius. i. The city could have sent out inspectors b. Discriminatory: favoring instaters

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How was the state law upheld in Maine v. Taylor (upholding disc state law) Facts: 1. Taylor (D), in defense of criminal charges, challenged Maine’s law prohibiting the importation of live baitfish on the ground it violated the Commerce Clause.

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2. Although a state law may be found to be discriminatory (in its effect), the law may be upheld b/c it is necessary to achieve a legitimate local purpose, and there are no other alternatives to protect those local interests.

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How was the state law upheld in Pike v. Bruce Church. TOPC: If a law is NON-discriminatory FACTS: 1. Bruce Church, Inc. (P) Challenged Arizona (D) law that prevented the transportation of uncrated cantaloupes within the state on ground it violated Commerce Clause.

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2. Balancing Test: If a state law is determined to be non-discriminatory—b/c it even handedly treats out of staters and instaters alike, the state law will be upheld so long as the benefits to the government outweigh the burdens on interstate commerce. i. Application of Test: 1. The state interest was highway safety and it passed the use of mudflaps. This regulation was invalidated b/c it created a greater burden on interstate commerce than a government benefit b/c the measure was not safer than other counters—in fact probably more dangerous since it had braking problems. See Bibb v. Navajo [unconstitutional NON-discriminatory law] a. DCC has the effect of creating uniformity and punishing outlier states. Is this a good thing? 2. If the safety interests of a state’s law are insignificant compared to the burden put on interstate commerce, the law will be in violation of the DCC. a. The use of large trucks would not increase the safety b/c greater number of smaller trucks would be needed to carry the same amount of goods out in the road. The burden on commerce would that big trucks would have to unload unto another trailer or circumvent the state. See Kassel [unconstitutional] 3. The low burden placed on interstate commerce of buying out corporations is outweighed by a state’s legitimate interest in making sure that its corporate law functions appropriately; by having a purchaser get approval from 51% of disinterested shareholders. See CTS [NON-discriminatory law is constitutional]

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UPDATE--Which test did Tennessee v. Lane {ABROGATION, EXAMPLE]'s use to abrogate state immunity? Statute: Facts: Title II of the Americans w/ Disabilities Act of 1990 provides that no qualified individual w/ a disability shall be “denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Respondent who uses a wheelchair to get around, had problems gaining access to a number of courthouses b/c of his disability. He says he lost work and an opportunity to participate in the judicial process.

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6. There are some due process rights that can be violated only when the states have a compelling reason and only when its law or activity is narrowly tailored to serve that reason. STRICT SCRUITNY.