Constitutional Law Spring 2008 Class 26: Dormant Commerce Clause II

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: Stewart Joined by: Brennan, White, Marshall, Blackmun, Powell, Stevens Dissent by: Rehnquist Joined 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, Ginsburg Concurrence by: O'Connor Dissent by: Souter Joined 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, Stevens Concurrence by: Brennan Joined by: Marshall Dissent by: Rehnquist Joined 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

2 Exceptions 1. Congressional Authorization 2. Market Participation Exemption

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