CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 26: Congressional Limits on State Powers: The
Dormant Commerce Clause II
I.
Framework for Analyzing Constitutional Challenges to
State/Local Regulations Under the DCC
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 exception)
II. Regulations that Discriminate Against Out-of-Staters
i.
Regulations that facially or overtly discriminate against
out-of-state interests:
A. Cases in which the Court struck down the regulation
 City of Philadelphia v. New Jersey (1978) [C p. 395]
[Review]
 Hughes v. Oklahoma (1979) [C p. 401] [Review]
 Granholm v. Heald (2007) [Supp. p. 71]
B. Case in which the Court upheld the regulation
 Maine v. Taylor (1986) [C p. 412]
ii.
Regulations that are facially neutral but discriminatory
in purpose or effect
A. Cases in which the Court struck down the regulation
 Dean Milk Co. v. City of Madison [C p. 411]
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 Hunt, Governor of the State of North Carolina v.
Washington State Apple Advertising Comm’n (1977)
[C p. 402] [Review]
 West Lynn Creamery v. Healy (1994) [C p. 407]
 C & A Carbone, Inc. v. Town of Clarkstown (1994)
[C p. 397] [Review]
III.State regulations that Do Not Discriminate Against Out-of-Staters :
NB: Rehnquist Court had tended to be unwilling to find state laws were
in this category that required them to apply the “undue burden test”;
Scalia does not recognize this category, see, e.g. concurrence in United
Haulers, infra; nor does Thomas, since he believes the DCC is not in the
Constitution, see concurrence in United Haulers, infra
A. Cases in which the Court struck down the regulation
 Southern Pacific Co. v. Arizona (1945) [C p. 391]
[Review]
 Bibb v. Navajo Freight Lines (1959) [C p. 416]
 Pike v. Bruce Church (1970) [C p. 415]
 Kassel v. Consolidated Freightways Corp. (1981) [C
p. 418]
B. Cases in which the Court upheld the regulation
 South Carolina v. Barnwell (1938) [C p. 390]
 Exxon Corp. v. Governor of Maryland (1978) [C
p. 404]
 State of Minnesota v. Clover Leaf Creamery Co.
(1981) [C p. 409]
 CTS Corp. v. Dynamics Corp. (1987) [C p. 421]
 American Trucking v. Michigan Public Service
Commission (2005) [Supp. 80]
 United Haulers Ass’n, Inc. v. Oneida-Herkimer
Solid Waste Management Authority (2007)
[Supp. 63]
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IV.
Exceptions
A. Congressional Approval
 Western & Southern Life Ins. Co. v. State Board of
Equalization of CA (1981) [C p. 424]
B. Market Participation Exception
 Hughes v. Alexandria Scrap Corp. (1976) [C p. 426]
 Reeves v. William Stake (1980) [C p. 426]
 White v. Massachusetts Council of Construction
Employers (1983) [C p. 428]
 South-Central Timber Development, Inc. v.
Commissioner (1984) [C p. 429]
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