Constitutional Law My notes #10
10/20/2014
Pg. 455-504
B. The Dormant Commerce clause
-principle that state and local laws are unconstitutional if they place an undue burden on
interstate commerce.
-congress could invalidate any state or local law that it deems to place an undue burden on
interstate commerce.
-crucial issue: whether the judiciary, in the absence of congressional action, should invalidate
state and local laws because they place an undue burden on interstate commerce.
*H.P. Hood & Sons, Inc. v. Du Mond, commissioner of agriculture & markets of new York
-1949
-Facts:
 H.P. Hood & Sons, Inc. a Massachusetts corporation, has distributed milk and its
products to inhabitants of Boston. That city obtains about 90% of its fluid milk from
states other than Massachusetts.
 Hood had established Dairies located in New York to supply for Boston demand in
which the controversay concerns a proposed additional plant for the same kind of
operation at Greenwich, New York [which the state seeks to deny to the
Massachusetts company].
-Issue: May a state constitutionally enact restrictions with the purpose and effect
of curtailing the volume of interstate commerce for the benefit of local economic
interest? No.
 The court looked at another milk litigation which was Baldwin v. G.A.F.Seelig Inc.
 In that case, New York placed conditions and limitations on the local sale of milk
imported from Vermont designed in practical effect to exclude it, while here its order
proposes to limit the local facilities for purchase of additional milk so as to withhold
milk from export.
 The state agrees that the commerce clause prohibits it from directly curtailing
movement of milk into or out of the state. The court held that the commerce clause,
even in the absence of congressional action, prohibits such regulations for such ends.
 Justice Cardozo explained the principle that the state may not promote its own
economic advantages by curtailment or burdening of interstate commerce.
 H reiterated that “our system fostered by the commerce clause, is that
every farmer and every craftsperson shall be encouraged to produce by
the certainty of free access to every market in the nation, that no home
embargoes will withhold exports and no other state will by customs duties
or regulations, exclude them. Such was the vision of the founders; such
has been the doctrine of this court which was given it reality.”
 Since the statute, as applied to Hood, violates the commerce clause and is not
authorized by federal legislation pursuant to that clause, it cannot stand.
2. The Dormant Commerce Clause Before 1938
*Aaron B. Cooley v. The Board of Wardens of the port of Philadelphia
-1851.
-Facts:
 A Pennsylvania law required all ships entering or leaving the Port of Philadelphia to
use a local pilot or pay a fine that went to support retired pilots.
-The court held the states may regulate these areas of interstate commerce that are local in
nature and do not demand a uniform national system of regulation by Congress.
 The section of the 1832 act merely specifies pilotage requriements, by tonnage, of
vessels and the trades in which they are engaged. Rather than unfairly favoring ships
in the coal trade, those requirements properly apply to all ships entering the
Philadelphia port.
 The congressional Act of 1789 unequivocally defined such matter as local, not
national, in character. Congress therefore deemed them to be most appropriately
regulated through multiple systems of laws instead of through one national system
that fails to account for local differences.
3. The Contemporary Test for the Dormant Commerce Clause
a. The shift to a Balancing Approach
*South Carolina state highway department v. Barnwell bros., Inc.
-1938
-Facts:
 Act No. 259 of the General Assembly of South Carolina prohibits use on the state
highways of motor trucks and “semitrailer motortrucks” whose width exceeds 90
inches, and whose weight including load exceeds 20,000 pounds.
 Section 2 of the statute for purposes of the weight limitation, that a semitrail
motortruck shall be considered a single unit.
-Issue: Whether these prohibitions impose an unconstitutional burden upon interstate
commerce. No.
 Congress has not decided to regulate the width and weight of motor vehicles in
interstate motor traffic and has left intact the state’s aturhoity to regulate in this area.
 The commerce clause itself prohibits discrimination by states against interstate
commerce, as where state laws are nominally of local concern, but in reality are
aimed at gaining a local advantage.
 Here, however, the object of state regulation is of great local concern. Unlike state
control of the railroads, which is subject to the commerce clause, the safe and
economical use of highways is a prime concern of the states, which own and
maintain their own highwyas.
 Where Congress has not acted, it is not for the courts to decide what are suitable
motor vehicle size regulations-that is a legislative choice and not a judicial one.
South Carolina’s regulations are within its legislative power and do not infringe the
fourteenth amendment, and the resulting burden on interstate commerce is not
forbidden.
*Southern Pacific Co. v. Arizona ex rel. Sullivan Attorney General
-1945
-Facts:
 The Arizona Train Limit law made it unlawful to operate within the state a train of
more than 14 passenger cars or 70 freight cars.
 It authorized the state to recover a money penalty for each violation.
 Arizona brought this action against Southern Pacific to recover the statutory
penalities for operative trains within the state in violation of the law.
-Issue: whether Arizona law is burdensome to the congress.???
 The courts must determine the nature and extent of the burden that a state regulation
would impose on interstate commerce, and then balance that burden against the
benefits and merits to be derived from the regulation.
 In this case, the findings show that the operations of trains of more than 14
passengers cars and more than 70 freight cars is standard practice of the major U.S.
railroads. If train length is to be regulated, national uniformity in regulation, such as
only Congress can impose, is practically indispensable to the operation of an efficient
and economical national railway system.
 The finding leave no doubt that the Arizona Train limit law imposes a serious burden
on interstate commerce. The practical effect of the law is to control train operations
beyond the boundaries of the state because of the necessity of breaking up and
reassembling long trains before entering and leaving the regulating state.
 Further, the Arizona law has no reasonable relations to safety. It infact makes train
operation more dangerous, as is demonstrated by the increase in accidents due to the
increase in the number of trains.
 The purpose of the Act was to cut down on “slack action accidents”
 Slack action is increased as train length is increased.
 However, the trial court found that such acciddents occurred as frequently in Arizona
as in Nevada, where train length is unregulated. Hence the total effect of the law as a
safety measure in reducing accident is so slight as to not outweigh the nationl interst
in keeping interstate commerce free from substantial interference and from
subjection to local regulation that dose not have a uniform effect on the interstate
train journey which it interrupts. Here, Arizona’s safety interest is clearly
outweighted by the nation interest in an adequate, economical, and efficient railway
system.
b. Determining Whether a law is discriminatory
Facially discriminatory laws
*city of Philadelphia v. New Jersey
-1978
-Facts:
 A New Jersey law prohibited the importation of most “solid or liquid waste which
originated or was collected outside the territorial limits of the State…”
 The purpose of the statute was “the legislature finds and determines that…the
volume of solid and liquid waste continues to rapidly increase, that the treatment and
disposal of these wastes continues to pose an even greater threat to the quality of the
environment of New Jersey.
 Immediately affected by these developments were the operators of private landfills in
New Jersey and they brought suit against New Jersey.
-Issue: Whether this statutory prohibition violates the Commerce Clause of the United States
Constitution. YES.
 Whatever New Jersey’s ultimate purpose, it may not be accomplished by
discriminating against articles of commerce coming form outside the State unless
there is some reason, apart from their origin, to treat them differently. Both on its
face and in its plain effect, Ch. 363 violates this principle of nondiscrimination.
 On its face, it imposes on out-of-state commercial interst the full burden of
conserving the State’s remaining landfill space.
 Court mentions that there will be one day where new jersey waste would have to go
to NY or Pennsylvania. That
 The commerce clause will protect New Jersey in the future, just as it protects her
neighbors now, from efforts by one state to isolate itself in the stream of interstate
commerce from a problem shared by all.
-Dissent: Justice Rehnquist: stated that the constitution does not require New Jersey to
receive and dispose of solid waste from other States when doing so will inexorably increase
the health problems of its citizens.
*Hughes v. Oklahoma
-1979
-Facts:
