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Constitutional Law II
University of Connecticut School of Law
Becker, Loftus E.


A. Judicial Protection of the National Market

1. Dormant commerce clause-
where congress has not acted. Principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no constitutional provision that expressly declares that states may not burden interstate commerce. Rather, the supreme court has inferred this from the grant of power to congress in article 1 § 8, to regulate commerce among the states. Issue: should judiciary, in the absence of a congressional rule on the issue, invalidate the state/local regulation for placing an undue burden on interstate commerce? (aka- even if congress has not acted on this issue, state and local laws can be challenged on the ground that it excessively burdens commerce among states.
2. Commerce clause has two distinct functions:
i) authorization for congressional functions
ii) limiting state and local regulation- this is dormant/negative commerce clause
3. Central question: whether state/local law discriminates against out-of staters or treats in staters and out of staters alike? If deemed discriminatory- unconstitutional, if deemed non-discrm- upheld.
4. Origins and Intentions

Hood & Sons- presents traditional arguments for having a dormant commerce clause-

i) Historical- framers intended to prevent state laws that interfered with IC
ii) economic- economy is better off if state and local laws impeding interstate commerce are invalidated
ii) political- states and their citizens should not be harmed by laws in other states where they lack political representation- (Mccullogh v. Maryland – pro-structuralism argument- invalidated maryland’s tax on bank of us because it would ultimately be borne by other states which did not have political representation in Maryland)

Cooley- Old View: “subject matter test”- if it does not involve a uniform national rule but is of local concern and permits diverse regulation, the state reg is upheld. Court says states can regulate police power, safety issues, but not commerce. Requiring a Pilot when leaving/entering port of Philadelphia is peculiarly local (Cooley)
Modern view: shift to balancing approach-not based on rigid categories but rather on balancing the benefits of the law against the burdens that it imposes on interstate commerce : South Carolina state highway department v. barnwell brothers- (state highways are peculiarly of local concern- states may impose nondiscriminatory restrictions on motor vehicles in IC as a safety measure and as a means of securing the economical use of its highways- these regulatory measures, limiting weight and width limitations of trucks, are within state’s legislative power.)
Philadephia v New Jersey-(facially discriminatory laws-) protection of environment- waste deemed a national problem- statute that excluded wastes from outside states to conserve states remaining landfill space and to reduce pollution was held insufficient to justify discrimination against interstate commerce – J. Stewart- “the commerce clause will protect NJ in the future just as it protects her neighbors now, from efforts by one state to isolate itself in the stream of IC from a problem shared by all.
West Lynn- money from MA treasury is going to help farmers- money ok because it is a subsidy, uses state tax dollars-
Clover Leaf- statute regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic non-returnable milk containers, without regard to whether milk, containers or sellers are from out of state

5. Facially Neutral laws: “ a court may find that a state law constitutes economic protectionism on proof of either discriminatory effect or discriminatory purpose” clover leaf. This analysis is quite different from equal protection, where a facially neutral law is deemed discriminatory only if there is both discriminatory effect and purpose.
o Washington state apple- Washington state, largest producer of apples due to strict inspection, WA state grades are equivalent or superior to USDA. NC enacted statute which required all closed containers of apples shipped or sold into state to bear no grade other than USDA. Not only could WA not place its state grade, but created marketing problem, industry practice to purchase containers pre-printed and ultimate destination unknown. Would require WA to take off stickers going to NC which would damage appearance and impose other costly alternatives. Left no burden on SC apple producers- still could market under USDA grade or none at all, which they had done prior to statute. WA would be forced to abandon its distinct market advantage. – statute does little to benefit SC residents from deception, rather it prohibits consumer from gaining quality information.
o Exxon- distinguished from apple- market survey showed that petroleum producers received preferential treatment during time of short supply. Court held there was no claim of disparate treatment since MD entire gasoline supply flows in interstate commerce and since there are no local refiners. Act creates no barriers against interstate independent dealers, will not place added cost, does not prohibit flow of interstate goods and does not distinguish between in state and out of state companies in retail market. “the fact that the burden of a state reg falls on some interstate companies does not by itself establish a claim of discrim against IC.
5. Contemporay tests and exception to DCC- Statues that draw geographical lines will be deemed invalid.

Dean Milk- a state law made it unlawful to sell milk unless pasteurized within five miles of the city. The law was held invalid as it discriminated in favor of local pasteurizing businesses and there were nondiscriminatory alternatives available to assure milk’s quality. Burden falls on state to justify law both in its terms of the local benefits flowing from statute and unavailability of nondiscriminatory alternatives-AKA has no other means of advancing a legitimate local interest.
Absence of alternatives exception- court will uphold a statute that protects health and safety interests (non-economic)- if there are no reasonable and adequate nondiscriminatory alternatives.
Maine v. Taylor –when golden shiner fish come from out of state it threatens Maines aquatic ecology- brings parasites, and poses environmental risks to Maines’ golden shiner population- upheld Maine statute
Pike v. Bruce Church, Bibb, Kassel – court uses balancing test – if there is a legitimate local interest and its effect on interstate commerce are only incidental, court will weigh affect on commerce versus putative local benefits- states reason for wanting cantaloupe packaging to look all the same in Arizona was minimal at best
Bibb-Mudflaps in Illinois – places too heavya burden on interstate movement of trucks – same with Kassel- Iowa statute prohibiting use of certain large trucks deemed unconstitutional –
Cts. Corp v. dynamics Corp. of America- statute is geographically neutral-does not impose greater burden on out-of staters that it does on similarly situated Indiana offers- this statute provides regulatory procedures designed for the better protection of corp shareholders. Court rejects notion that Commerce Clause protects structure or methods of operation in a market.
Western and southern life insurance v California Board of Equalization-California statute, authorized by congress, discriminated against interstate insurance companies whose home states discriminated against California insurance companies. Court found no EP violation – CA had legitimate purpose to deter other states from discriminating against interstate commerce.

6. Market participation exception- the commerce clause does not prevent a state, when acting as a purchaser or seller of goods from buying only from or selling only to local business or from giving subsidies

fare, social security and jobs are seen as things people rely upon in their lives and thus hold the same place in a person’s life as property traditionally occupied.
2. Due Process- both the fifth and the fourteenth amendments protect against the deprivation of “life, liberty or property without due process of law” this protects criminals and an additional range of liberty and property interests from being impaired without some type of notice and hearing before an unbiased decisionmaker. Court uses two step analysis in determining whether procedural due process has been denied:
i) has a liberty or property interest been impaired?
ii) if so, what procedures are due?
3. Cases:
· Goldberg v. Kelly- termination of welfare benefits- need based. due process requires an evidentiary hearing before termination of welfare benefits. Requires notice, right to confront and cross examine witnesses, right to present own arguments in front of impartial decisionmaker.
· Strength of Goldberg claimants
o court obvious sympathy with welfare recipients- the raw need of claimants
o under DPC, government has obligation to provide ? how reasonable for claimant to expect that this situation will continue
· There are constitutionally protected property interests in:
o public education when school attendance is required and a student has liberty interest in his reputation- entitled to due process when suspended (atleast given notice and a chance to be heard) ( Goss v Lopez- court indicated that reputation is a liberty interest and also found a property interest in students attending school- would be an arbitrary deprivation of liberty without due process)
o continued welfare benefits where applicant meets stautory criteria (Goldberg)
· However, benefits require a legitimate claim under applicable law and it requires more than an abstract need or desire, more than a unilateral expectation-
o ( Board of Regents v Roth- non-tenured, hired for only one academic year- Must have an interest and then have it taken away for due process entitlement)
o Paul v. Davis – no liberty interest, but can bring law suit for defamation- so still have remedy – is there no liberty interest in reputation or whether it is saying you have due process because you can sue . Held: the words liberty and property as used in the 14th A do not in terms single out reputation as a candidate for special protection over and above other interests- reputation alone apart from some more tangible interests such as employment, education to invoke the procedural protection of the DPC.
o Sandin v. Conner – reexamined circumstance under which state prison regulations afford inmates liberty interested protected by DPC.- prisons not living up to regulations – does segregating a prisoner from general prison population for violating disciplinary rule deprive inmate of liberty- Court held maximum security prison- individual cell is not important enough to be a liberty interest and therefore we will not look at the regulations – “there is a liberty interest only if a significant deprivation of freedom that is atypical to usual conditions of confinement.
Mathews v. Elderidge– social security benefits cut off before evidentiary hearing- claimants claim win under Goldberg –