CONSTITUTIONAL LAW CLASS 12

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CONSTITUTIONAL LAW CLASS 12

• DORMANT COMMERCE CLAUSE
• February 2, 2007

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DORMANT COMMERCE CLAUSE

• Relationship to preemption
• Relationship to Privileges and Immunities Clause
  in Art. IV 2
• Relationship to Equal Protection Clause of
  Amendment XIV

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Should There Be A DCC?
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Historical Approach

• Gibbons v. Ogden (1824)
• commerce vs. police power distinction

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History Early Taney Court

• Some justices commerce power exclusive, but
  police regulations constitutional
• Taney state regulations of comerce valid unless
  they come into conflict with a law of Congress

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History Cooley v. Board of Wardens (1851) (CB p.
251)
National-Local Distinction
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History DiSanto v. Pennsylvania (1927)

• Direct/Indirect Burdens

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Modern Approach

• 1. State Laws that facially or overtly
  discriminate against out-of-state interests
  prima facie presumption of invalidity
• 2. State Laws that are not facially or overtly
  discriminatory but are protectionist in purpose
  or effect also invalid
• 3. Nondiscriminatory state laws balancing
  approach

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West Lynn Creamery v. Healy (CB p. 264)

• Stevens wrote majority opinion. O'Connor,
  Kennedy, Souter, and Ginsburg, joined.
• Concurrence by Thomas and Scalia
• Dissent by Rehnquist, joined by Blackmun

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Camp Newfound/Owatonna V. Town of Harrison (1997)
(CB p.266)

• Stevens, delivered the opinion of the Court, in
  which O'Connor, Kennedy, Souter, and Breyer,
  joined.
• Scalia, J., filed a dissenting opinion, in which
  Rehnquist, C. J., and Thomas and Ginsburg,
  joined.
• Thomas filed a dissenting opinion, in which
  Scalia joined, and in which Rehnquist joined as
  to Part I.

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Home Processing Cases
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Pike v. Bruce Church, Inc. (1970) (CB p. 286)
(Stewart wrote opinion of Court)
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Market Participation Exception

• South-Central Timber Development v. Wunnicke
  (1984) (CB p. 311) (cites other cases) (White
  joined by 3 justices)

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