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 nondiscriminatory
• 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. OneidaHerkimer 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