Commerce Pwr: CC (Commerce Clause) & DCC (Dormant Commerce Clause)

CC & Source of Fed. Pwr

  1. US v. Lopez (no gun statute but 12 yr. old in school w/gun)
    1. Textualist Approach
      1. Art I, §8 of CC says reg. commerce among sev. states / state & for.
      2. Strict constructionist would say poss'n of gun not commerce b/c that implies exch. 4 consid. but can also say commerce if movement btwn states
      3. So would lead 2 holding against state rt. & 4 all fed. reg. b/c anything moving from state 2 state in stream of IC so fed. can reg.
    2. Originalism / Framers' Intent Approach
      1. Justice Thomas gives selective quotes from framers & that should come up w/coherent test b/c not intended commerce 2 B interp'ed this way but does not give stand.
      2. Hamilton promoted jud. restraint but if ct. say quest. of subst'l rel. of reg'ed thing & IC, then Thomas 4 jud. activism
      3. Framers wanted S/P not substitution of dec's so would lead 2 dif. concl.
      4. Framers liked both jud. restraint & govt'al decentralization not just govt decentralization
    3. CLS Approach
      1. Factual Indet. that facts can B broad / narrow 2 det. outcome
      2. Normative Indet. that arb. in which source selected
        1. Picking from conflicting sources is subj. & political
        2. No logical / obj. way 2 say 1 source superior / framers prefer
    4. Failed Stand's From Past
      1. Dir. v. Indir
      2. Inherently Evil (ex. lottery tix case)
      3. Rational Basis Test (Justice Souter & New Deal)
        1. Strike down only if no rational basis so deferential & anything goes
        2. Not know what the test is
        3. If no rational basis & strike down, then substitute dec. 4 leg.
        4. Used until 1995
      4. Others all failed b/c margins 2 wide
      5. Tried 2 carve out state auth. by referring 2 impermissibility of Cong.
    5. Three Prongs of CC Modernly (Justice Rehnquist)
      1. Channels: use of channels of interstate commerce (IC)
      2. Instrumentalities: people, things, etc. 4 IC
      3. Subst'l Affect & Rel. 2 IC: NLRB v. Jones Laughlin test
      4. Not deferential 2 Cong. / process
    6. Prob's of Rehnquist's Test W/This Case
      1. Subj. 2 prob's of elasticity of norms & facts
      2. Breyer show that poss'n of gun affects quality of ed., busi, & IC
      3. All component of gun moved through channels so use of IC's channel
    7. Aggregate Stand. Rejected in This Case
      1. Cong. can view all events & look @ cumulative effect not indiv. acts but Cong. didn't set out such stand. here
      2. But C/L says can aggregate 4 subst. rel. 2 IC if commerce req'ed 2 indiv. application
    8. Stare Decisis (Kennedy & Breyer)
      1. Concern about predictability & slippery slope
  2. Gibbons v. Ogden (Ogden w/NY license & Gibbons w/Fed.)
    1. CC Then Sup Clause
      1. Est. 1st that fed statute valid then Sup Clause effective 2 trump statute statute
    2. Navigation & Transportation Part of Commerce
    3. Affectation Stand.
      1. Intrastate commerce (ISC) not subj. 2 Cong. reg. unless affects other states, then Cong. can reg. this 2 OR
      2. Commerce not compl'ly w/in a part. state affecting other states w/in Cong. pwr 2 reg.
      3. Anything goes under this stand.
      4. Split until NLRB Case
    4. Limits of Fed Pwr
      1. Cong. abuse checked by polit. process not jud.
    5. Application of Lopez Stand.
      1. Channels: traffic of people btwn states
      2. Instrumentalities: steamboat
      3. Subst'l Rel.: Not met so would Marshall's holding probably fail
  3. US v. EC Knight (Amer. Sugar Refining Company & mfgr)
    1. Dir v. Indir
      1. Mfgr. not part of commerce b/c transform good so only indir. effect
      2. Commerce is tranportation of prod. by buying & selling
    2. Nat'l v. Local Activities
      1. Disting. local activites
      2. 10th amend. gives immunity from fed. reg. as flipt side of CC
    3. Application of Lopez Stand.
      1. Local mfgr. w/indir. affect on IC but nat'l monopoly so would pass subst'l effect
      2. Squishy test
    4. Rational Basis Test: would uphold whatever Cong. did
  4. The Shreveport Rate Case (TX RR rate)
    1. Protectionism
      1. Effort 2 give local mfgr'ers adv. from out of state mfgr'ers w/dif. rates
      2. IC Commission (ICC) readjusted ISC 2 bring up 2 IC rate
    2. Mix of ISC & IC
      1. Fed can reg. b/c rel. subst'l by exception 2 no reg. of ISC as set out in Gibbons
    3. Application of Lopez Stand.
      1. Channels: RR moved purely ISC
      2. Instrumentality: none
      3. Subst'l Rel: a lot
      4. Can arg. both ways but probably wouldn't overturn
  5. Hammer v. Daggenhart, Schechter Poultry Cases
    1. Judge's Predilections
      1. Preferred laissez faire econ. & disliked govt reg.
      2. Used pwr 4 their own end 2 create soc. they want
  6. Lottery Case
    1. Inherently Evil Stand.
      1. Disting'ed from child labor b/c prod's not inherently evil
      2. Must B evil before / after moving 2 criminalize movement that's inherently evil
      3. Can't really disting. inherently evil
  7. Wickard v. Filburn (small farmer w/wheat)
    1. Aggregation Princ. Stand.
      1. All farmers aggregate 2 impact econ.
      2. Subst'l effect so statute o.k. b/c Cong's obj. 2 prevent Filburns from going down
      3. Deferential 2 process stand.
    2. Prob's
      1. Ignore 10th amend.
      2. Impract. 2 give notice by aggregation princ. consistent w/due process
    3. Application of Lopez
      1. Would come out the other way b/c zero effect analysis
  8. Katzenbach v. McClung (Ollie's BBQ & Civil Rts Case) & Heart of Atlanta Motel v. US
    1. Pretextual & Aggregate Stand.
      1. Pretextual use of CC & jud. activism 2 look @ leg. intent
      2. Upheld Civil Rts Act through CC b/c couldn't by E/P / 14th amend. b/c those ned state axn
  9. Stand's
    1. Common Prob's in CC & Process
      1. 10th amend. must have some meaning
      2. Limitation of Cong. pwr by CC b/c enumerated & not extend 2 cert. stuff
      3. Jud. rev. checks Cong. but quest. on substituting dec's 4 leg.
      4. Need Const'al ground before judges dec. b/c govt of law not men
      5. Need princ. 4 justifying dec's whether we like / not b/c highest morality on process since process det. the law
    2. Recap of Stand's
      1. Subst'l Effect (Lopez)
      2. Affectation (Gibbons)
      3. Dir / Indir. (Knight)
      4. Aggregate (Wickard)
      5. Inherently Evil (Lottery)
      6. Pretextual (Ollie's BBQ)

Delegation v. Preemption in CC

  1. Charact's of Adm. Agencies
    1. Cong'al Creatures
      1. Could B abolished by Cong. b/c not Const'al entities except 4 part of Pres. staff & White House
      2. Cong. tells the fn. & implicitly what not 2 do by statute / charter
      3. Implied pwrs R narrow
    2. Rule Making & Adjudication
      1. Agency's rule derive force from leg. effect of Cong. from CC, not by itself
      2. Rules R = footing as fed. statute b/c agency acting 4 Cong. 2 carry out granted fn's
    3. Challenging Agencies
      1. Agency acted ultra vires where do something Cong. not auth'ed
      2. Cong. acted ultra vires by assigning pwrs it didn't have
  2. Delegation Doc.
    1. Cong. can't delegate law-making by statute & can't make agencies 2 create law
    2. No Stand'less Delegation Not No Delegation 4 New Deal Adm's
      1. Schechter Poultry Case (Adm. agency by NIRA 4 health of barnyards)
        1. Broad pwr 2 limit / not limit in local agencies
      2. Carter Coal Case (coal mine case)
        1. Struck down max hr. & min wage
      3. Sup Ct wanted some guideline 2 limit discretion in both cases
      4. Became less concerned about fed. reg. of econ. so backed out
      5. Arb. & unpredictable b/c not know what stand.'less delegation mean
    3. Acct'ability & Delegation
      1. Can't hold Cong. acct'able if Cong. delegates all pwr 2 adm agency
      2. Delegation doc. focus on trying 2 id dec. makers 2 make govt acct'able
  3. Preemption Doc.
    1. Cong.'al Occupation of the Field
      1. When Cong. occupies the field on cert. subj. matter precl'ing state axn
      2. Cong. enacts a valid statute then state can't act on that subj. (ex. caller id's & Gibbons)
  4. US v. NY
    1. 10th Amend. Restriction
      1. Nondelegated rts 2 states
    2. UnConst'al Statutes B/C No Choice
      1. NY either had 2 enact reg. scheme by Cong. / take title so no choice
      2. Undermines fed'sm b/c distorts acct'ability by bifurcating cost 2 NY & benefit 2 Fed
    3. Other Possibilities 4 Reg.
      1. Could've preempted NY
      2. Condition fund & encourage NY

DCC & Limitation on State Pwr

  1. Neg. Implication of CC / Imply No Pwr 2 States by Giving 2 Cong.
    1. State Axn Dep'ing on Const. & Cong. Postures
      1. Approve, Disapprove, / silent by Cong. & Const.
      2. Excl fed jxn v. concurr. jxn dep'ing on if Const. prohibits state / is silent
      3. If in concurr. jxn but Cong. preempts & says no, then Sup Clause says state can't act
  2. Gibbons v. Ogden
    1. Cong. Preempted But Unclear
      1. Marshall not dec. if there's excl. fed. zone
      2. Johnson in concurr. said excl fed jxn when Cong. silent & seems 2 imply that not matter if Cong. said o.k. b/c Const. prohibits so state can't act
  3. Willison v. Black Bird Creek Marsh Co. (DL obstructed creek)
    1. Cong. Silent, Concurr. Jxn
      1. If had struck the statute down, then excl fed auth b/c only Const. would condemn but Marshall upheld so concurr. jxn
  4. Cooley v. Board of Wardens of Port of Phil. (Cong. statute 4 local pilots & Phil. req'ed local pilots)
    1. Acted 2 Enhance IC
    2. Per Se Invalid Rule
      1. Dep's on uniformity / diversity & if need uniformity then state statute per se invalid
      2. Concurr. Jxn in Holding b/c upholds Phil. statute & Cong. approved
      3. Cooley 1: Cong. Yes & Excl. Fed Jxn (dicta) then CC implicitly prohibits state statute / axn b/c Cong. can't act against Const. but pract'ly Ct. probably can't say no if all states oppose
      4. Cooley 2: Cong. Silent & Excl. Fed. Jxn (dicta) where dec. by uniformity / diversity
    3. Jxn by Subj. Matter Being Reg'ed
      1. Need 4 uniformity then excl & perhaps not matter what Cong. says (yes / no)
  5. Lyssee v. Harden
    1. Pract'al Conseq's
      1. Cong. silent & Ct. said uniformity so state statute invalid but when Cong. spoke in Wilson Act, Ct. overturned the case in re Rahrer instead of striking down the Act
  6. Providential & In re Rahrer Cases
    1. Cooley 2 Invalid
      1. Some variation on delegation b/c Cong. has auth. 2 reg. but can deleg. 2 states
  7. Per Se Invalid / Bright Line Rule v. Balancing Test
    1. Gen. Stand. of Bright Line Rule
      1. If there's discrim. / not
      2. Det. discrim. by leg. intent / purpose AND leg. effect
      3. Int. in 1 econ unit so not matter if intent bad
    2. Adv. & Disadv. of Per Se Inavlid
      1. Simple so low litigations & can predict the outcomes supposedly
      2. Not consid. anythign on other side & predictability @ expense of fairness
    3. Per Se Invalid W/Varying Deference 2 Leg.
      1. Rational Basis test is highly deferential 2 leg. & let them do whatever
      2. Strict scrutiny is least deferential 2 leg. & almost always invalidate unless state can show compelling int.
    4. Subj. Balancing Test
      1. Need 2 dec. which factors 2 consid & what values, so unpredictable b/c judges will B dif.
    5. Discrim. 4 Disting'ing Btwn Bright Line & Balancing Test
      1. But both balancing & per se invalid unpredictable b/c per se invalid fudges in finding discrim.
    6. Externalities & Per Se Invalid
      1. Both turn on intent & effect
  8. SC v. Barnwell
    1. Stand.: Per Se Invalid by Discrim. & Rational Basis
      1. Discrim: find discrim. if 1 state gives itself adv. over other states but if no discrim, go 2 next step
      2. Rational basis test: gen'ly defer 2 leg. so per se invalid rule
    2. No Discrim. In This Case
      1. Safety concern which is sub. 2 state reg. so no discrim.
      2. Defer 2 polit. process in no discrim. b/c when state int. hurt as much as outside, if no systemic malfn, people can vote & change
      3. If discrim, then people outside can't change so Ct steps in
  9. Southern Pacific Co. v. AZ (AZ trains shorter)
    1. Stand: Balancing Test
      1. Weighed burdens of IC & state int. of safety where some discrim. against IC but not ISC b/c cost lot 2 travel through AZ
      2. Fed CC wins b/c state int. illusory
    2. State Statute Discrim. In Effect Not In Purpose
    3. No Rational Basis When Polit. Process Malfn
    4. Douglas' Discrim. Def. & Affinity 4 Per Se Invalid
      1. Only discrim. when intent/ purpose not effect
  10. Bibb v. Navajo Freight Lines Inc. (contoured mudguards)
    1. Stand.: Balancing Test
      1. Douglas abandons per se invalid rule b/c wouldn't take fed. int.
      2. IL req's contoured when 45 o.k.'ed straight
      3. Evenhandedness in high cost & burden on IC & ISC so no discrim. but safety value unclear so invalid by balancing test
  11. Kassel v. Consolidated Freightways Corp. (no large trucks but gov'or intended 2 protect ISC)
    1. Stand.: Per Se Invalid by Discrim. Intent
      1. Discrim. intent 2 protect ISC truckers so invalid
  12. Baldwin v. Seelig (NY price floors of mild in Depression)
    1. Stand.: Per Se Invalid by No Protectionism
      1. Means was protectionist & discrim. against IC so unConst'al
      2. End can't isolate itself from 1 econ. unit
    2. No Balancing Test B/C Have 2 Weigh State Benefit So Subj.
  13. Hood & Sons v. Du Mond (not allow milk processing in NY)
    1. Stand.: Per Se Invalid by No Protectionism
      1. Protect NY econ int. by not allowing milk 2 move 2 Mass. but can't B protectionist 2 advance even legit. state int.
    2. Dissent: Frankfurter & Balancing Test
      1. There may B some benefits outweighing fed. costs
  14. Dean Milk Co v. Madison (sell milk after pasteurized & processed w/in 5 miles of Madison)
    1. Stand.: Balancing Test
      1. No discrim. per se b/c burden on IC & ISC but statute unConst.'al b/c local int. v. fed. int.
    2. Corollary 2 Stand.: Least Restrictive Means
      1. State int. of sanitation & proper milk grade can B achieved by less restrictive means
  15. Phil. v. NJ (NJ not want Phil. so leg. in NJ 4 only NJ)
    1. Stand.: Per Se Invalid by Facial Discrim.
      1. Apparent on fact of statute, w/o exmining adm. processes, facially discrim. b/c econ. isolationism so unConst'al
    2. Externalities Internalized by the Stand.
      1. NJ was externalizing the cost by pushing it out of state
      2. Those benefitting R forced 2 pay by Ct's modification of the scheme so Const'ly internalized
    3. Dissent: Rehnquist
      1. Precedents in quarantine laws excl'ing stuff w/germs
  16. Minn. v. Clover Leaf Creamery Co. (banned sale of milk in plastic containers)
    1. Stand.: Balancing Test
      1. Not discrim. b/c not econ. isolation 2 protect local int. of containers but intent & purpose 4 env.
      2. Effect of dif. econ. dispositive if burden on IC outweighs benefit 2 env. but didn't so Const'al
    2. No Per Se Invalid B/c Some Burden But Not Facially Discrim.
    3. Externalities
      1. Same analysis as Phil v. NJ b/c those benefitting externalize cost & make outsider pay
      2. But here, not internalized the cost by the stand.
  17. Pike v. Bruce Church (cantaloupes out of state 2 crates not id'ing AZ as source)
    1. Stand: Balancing Test by Effect on IC v. Local Purpose
      1. If statute reg's even-handedly, then no discrim., effect on IC incidental, & statute o.k.
      2. If burden imposed on IC clearly higher than the putative local benefits then unConst'al
      3. If legit. local purpose, then quest. of degree so burden o.k.'ed dep'ing on nature of local int. & through means of lesser impact on IC
    2. Corollary 2 Stand: Least Restrictive Means
      1. Was also found in per se invalid
    3. Balancing Test Choice & Polit. Malfn
      1. Local int. 2 discrim. against ISC so polit. malfn so apply balancing test
  18. Sporphase v. Neb. (no water from Neb. 2 Colorado)
    1. Stand.: Per Se Invalid by Strict Scrutiny & Least Restrictive Means
      1. Could've used per se invalid b/c text facially discrim's
      2. All subj. 2 strict scrutiny unConst'al unless can show compelling state int. which is almost never done
      3. Also a stand. in fund'al rt's cases
  19. Hughes v. OK (state owned animals w/in the state of prop. rt)
    1. Stand.: Per Se Invalid by Strict Scrutiny & Least Restrictive Means
      1. Must have solid legit. purpose like compelling state int. so no mere assertion of health, safety, / env.
      2. UnConst'al here & overruled legal fixn of state ownership
  20. Maine v. Taylor (baitfish statute preserving wildlife)
    1. Stand.: Per Se Invalid by Strict Scrutiny & Least Restrictive Means
      1. Discrim's but passes strict scrutiny b/c only way 2 preserve fish as compelling int.
      2. Not protectionist so upheld as least restrictive means
  21. Mkt Participation Exception
    1. Reg. v. Participation
      1. State act as mkt participant so not subj. 2 DCC
      2. State not in same footing as other Co's when act as mkt participant
    2. Const. Limits
      1. Only apply 2 CC rationale as not acting w/in govt'al pwr but still subj 2 Const. limit of 14th amend.
    3. Not Know the Boundary of Mkt Participation Exception
  22. SD Timber Dev. v. Wunnicke (confine cement 2 SD residents)
    1. Mkt Participation Exception
      1. Not subj. 2 DCC b/c prod'er was the state who competes w/other mkt participants not reg.

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