constitutional law spring 2008 class 26: dormant commerce clause ii
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REVIEW: Framework for analyzing a DCC issue
• 1. Does the state or local law affect interstate commerce?
• 2. Is the state or local law discriminatory?• 3. Apply relevant balancing test (strict
scrutiny if discriminatory either facially/or in purpose/effect; undue burden if not)
• 4. Check to see if any exception applies (congressional authorization, market participation exemption)
Laws that are deemed discriminatory
• Are subject to strict scrutiny
• They are per se invalid unless the state or local entity can demonstrate that there is no other means to advance a legitimate local interest. See Carbone v. Town of Clarkstown (1994) [C p. 397], Hunt v. Washington State Apple Advertising Comm’n (1977) [C p. 402]
Philadelphia v. New Jersey (1978) [C p. 395]
• Majority by: StewartJoined by: Brennan, White, Marshall, Blackmun, Powell, StevensDissent by: RehnquistJoined by: Burger
Hughes v. Oklahoma (1979) [C p. 401]
• Majority by Brennan, joined by Stewart. White, Marshall, Blackmun, Powell, and Stevens
• Rehnquist filed a dissenting opinion, in which Burger joined
Granholm v. Heald (2005) [Supp. 71]
• Majority opinion by Kennedy, joined by Scalia, Souter, Ginsburg, Breyer
• Dissent by Stevens, joined by O’Connor
• Dissent by Thomas, joined by Rehnquist, Stevens, O’Connor
Maine v. Taylor (1986)
• 8-1• Majority opinion by
Blackmun, joined by Burger, Blackmun, Powell, White, O’Connor, Rehnquist, Brennan
• Dissent by Stevens,
Dean Milk Co. v. City of Madison (1951) [C p. 411]
• 6-3 decision• Majority opinion by
Clark, joined by Vinson, Reed, Frankfurter, Burton
• Dissent by Black, Douglas, and Minton
Hunt, Governor of North Carolina v. Washington State Apple Advertising
Comm’n (1977) [C p. 402]• Unanimous• Opinion of the Court
by Burger
West Lynn Creamery, Inc v. Healy (1994) [C p. 407]
• Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, and Ginsburg joined.
• Scalia filed an opinion concurring in the judgment, in which Thomas joined
• Rehnquist filed a dissenting opinion, in which Blackmun joined.
C & A Carbone, Inc. v. Town of Clarkstown, New York (1994) [C
p. 397]• Majority opinion by
Kennedy, joined by Stevens, Scalia, Thomas, GinsburgConcurrence by: O'ConnorDissent by: SouterJoined by: Rehnquist, Blackmun
Laws that are deemed non-discriminatory
• Are not subject to strict scrutiny
• Are subject to less demanding test
• Upheld if the benefits to the government outweigh the burden on interstate commerce
• Scalia, and Thomas object to this “undue burden” test
Bibb, Director, Dep’t of Public Safety of IL v. Navajo Freight Lines, Inc.
(1959) [C p. 416]• Unanimous• Opinion of the Court
by Douglas
Pike v. Bruce Church, Inc. (1970) [C p. 415]
• 8-0• Opinion of the Court
by Stewart (joined by Burger, Black, Douglas, Harlan, Brennan, White, and Marshall)
Exxon Corp. v. Governor of Maryland (1978) [C p. 404]
• Stevens wrote majority opinion; he was joined by: Burger, Brennan, Stewart, White, Marshall, Rehnquist
• Blackman was the only dissenter
State of Minnesota v. Clover Leaf Creamery (1981) [C p. 409]
• Justice Brennan wrote majority opinion, joined by Marshall, Burger, White, Stewart, Powell, Blackmun
• Rehnquist did not participate
• Stevens was the sole dissenter
• Clover Leaf Creamery acquired by Kemps in 1979 which became part of MA Hood company in 2004
Kassel v. Consolidated Freightways Corp. (1981) [C p.
418]• Plurality by: Powell
Joined by: White, Blackmun, StevensConcurrence by: BrennanJoined by: MarshallDissent by: RehnquistJoined by: Burger, Stewart
• Decided 2 months after Clover Leaf
American Trucking Ass’n v. Michigan Public Service Comm’n
(2005)• Opinion of the Court
written by Breyer• Thomas concurred• Scalia also concurred
United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management
Authority (2007) [Supp. p. 63]• Plurality opinion by
Roberts, joined by Souter, Ginsburg, and Breyer
• Concurrence by Thomas• Partial concurrence by
Scalia• Dissent by Alito, joined by
Kennedy and Stevens
CTS Corp. v. Dynamics Corp. of America (1987) [C p. 421]
• Majority opinion by Powell, joined by Rehnquist, Brennan, Marshall, and O’Connor and, in part, Scalia
• Scalia filed an opinion concurring in part and concurring in the judgment
• Dissent by White, joined in part by Blackmun and Stevens
Western and Southern Life Ins. Co. v. State Board of Equalization of CA (1981) [C p. 424]
• 7-2• Opinion of the Court
by Justice Brennan (joined by Burger, Marshall, White, Stewart, Powell, Rehnquist)
• Stevens dissented, joined by Blackmun
Hughes v. Alexandria Scrap Corp. (1976) [C p. 426]
• Majority opinion written by Powell, joined by Burger, Stewart, Blackmun, Rehnquist, Stevens
• Stevens wrote a concurrence
• Brennan wrote a dissent, joined by White and Marshall
Reeves, Inc. v. William Stake (1980) [C p. 426]
• On the left is a historical photo of the SD state cement plant (sold to MX company in 2001)
• Majority opinion by Blackmun, joined by Burger, Stewart, Marshall, and Rehnquist
• Dissent by Powell, joined by Brennan, White, and Stevens
White v. Massachusetts Council of Construction Employees (1983) [C p.
428]• Left: Mayor Kevin
White • Majority opinion by
Rehnquist, joined by Burger, Brennan, Marshall, Powell, Stevens, and O’Connor
• Partial concurrence by Blackmun, joined by White
South-Central Timber Development, inc. v. Commissioner, Dept’ of Natural Resources of
Alaska (1984) [C p. 429]• Plurality by White, joined
(as to market participation exception issue) by Brennan, Blackmun, and Stevens
• Brennan wrote a concurrence
• Powell wrote a concurrence, joined by Burger
• Dissent by Rehnquist, joined by O’Connor
• Marshall did not participate
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