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

onstitutional Law
            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

re-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.
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.