Constitutional Law Spring 2008

1. Constitutional Law Spring 2008 Class 26: Dormant Commerce Clause II

2. 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)

3. 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]

4. Philadelphia v. New Jersey (1978) [C p. 395] • Majority by: StewartJoined by: Brennan, White, Marshall, Blackmun, Powell, StevensDissent by: RehnquistJoined by: Burger

5. 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

6. 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

7. Maine v. Taylor (1986) • 8-1 • Majority opinion by Blackmun, joined by Burger, Blackmun, Powell, White, O’Connor, Rehnquist, Brennan • Dissent by Stevens,

8. 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

9. Unanimous Opinion of the Court by Burger Hunt, Governor of North Carolina v. Washington State Apple Advertising Comm’n (1977) [C p. 402]

10. 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.

11. 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

12. 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

13. 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

14. 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)

15. 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

16. 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

17. Kassel v. Consolidated Freightways Corp. (1981) [C p. 418] • Plurality by: PowellJoined by: White, Blackmun, StevensConcurrence by: BrennanJoined by: MarshallDissent by: RehnquistJoined by: Burger, Stewart • Decided 2 months after Clover Leaf

18. American Trucking Ass’n v. Michigan Public Service Comm’n (2005) • Opinion of the Court written by Breyer • Thomas concurred • Scalia also concurred

19. 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

20. 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

21. 2 Exceptions • 1. Congressional Authorization • 2. Market Participation Exemption

22. 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

23. 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

24. 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

25. 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

26. 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