A Synthesization of Structures of the Constitution
Structures of the Constitution, Winter 2012, BYU Law, Prof. Fee
Contents
I.
Federal Judicial Power .............................................................................................................................. 4
A.
Authority for Judicial Review .......................................................................................................... 4
1. Marbury v. Madison .......................................................................................................................... 4
2. Federal Courts Can Overrule State Courts.................................................................................... 4
B.
Interpretive Limits of Federal Judicial Power ............................................................................... 4
1. Ways to Interpret Constitution ....................................................................................................... 4
C.
Congressional Limits on Judicial Power ........................................................................................ 4
1. Limits Based on Exceptions Clause—McCardle............................................................................ 4
2. Limits Based on Separation of Powers .......................................................................................... 4
D.
Justiciability Limits on Federal Judicial Power .............................................................................. 5
1. Prohibition against Advisory Opinions ......................................................................................... 5
2. Standing .............................................................................................................................................. 5
3. Ripeness .............................................................................................................................................. 7
4. Mootness ............................................................................................................................................ 7
5. Political Questions ............................................................................................................................ 7
II.
Ways to Interpret and Argue Constitution ........................................................................................... 8
A.
III.
Overturning A Case .......................................................................................................................... 9
The Commerce Clause Power and 10th Amendment Limits .......................................................... 9
A.
McCulloch v. Maryland, 1819, Necessary and Proper Clause ......................................................... 9
B.
Commerce in General....................................................................................................................... 9
1. Early to 1890s .................................................................................................................................... 9
2. 1890s to 1937 ...................................................................................................................................10
3. 1937-1990s .......................................................................................................................................10
4. 1990s to Present ..............................................................................................................................11
IV.
A.
V.
Taxing and Spending Power ..............................................................................................................12
Conditions on Grants to State Governments .............................................................................12
Post-Civil War Amendments ................................................................................................................12
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VI.
Power of Congress to Authorize Suits against State Governments.............................................13
VII.
Executive Powers ................................................................................................................................13
A.
Inherent Powers ..............................................................................................................................13
B.
Executive Privilege ..........................................................................................................................14
C.
Increasing Executive Power—Line Item Veto ...........................................................................14
D.
Legislative Veto ...............................................................................................................................14
VIII.
The Executive’s Administrative Powers ......................................................................................14
A.
Non-Delegation ...............................................................................................................................14
B.
The Way Things Are Now .............................................................................................................14
C.
Checking Admin Power Via Controlling Appointment/Removal ..........................................14
1. Appointments ..................................................................................................................................14
2. Removal Power................................................................................................................................15
IX.
Separation of Powers and Foreign Policy ........................................................................................15
A.
Is There a Difference between Foreign Policy and Domestic Affairs?...................................15
B.
Treaties and Executive Agreements .............................................................................................15
C.
War Powers ......................................................................................................................................16
D.
War on Terrorism............................................................................................................................16
1. Detentions ........................................................................................................................................16
2. Military Tribunals ............................................................................................................................16
X.
Checks on the President ........................................................................................................................17
A.
Lawsuits ............................................................................................................................................17
B.
Impeachment ...................................................................................................................................17
XI.
Dormant Commerce Clause ..............................................................................................................17
A.
Arguments in Favor ........................................................................................................................17
B.
Criticisms ..........................................................................................................................................17
C.
Prior to 1938 ....................................................................................................................................17
D.
Modern Test .....................................................................................................................................17
E.
Is the Law Discriminatory? ............................................................................................................18
1. Facially Discriminatory ...................................................................................................................18
2. Facially Neutral ................................................................................................................................18
F. Exceptions to Dormant Commerce .................................................................................................18
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1. Congressional Approval .................................................................................................................18
2. Market Participation Exception ....................................................................................................18
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I.
Federal Judicial Power
A.
Authority for Judicial Review
1.
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2.
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B.
Marbury v. Madison
The court will review ministerial actions, but not discretionary actions.
The court cannot accept authority that exceeds bounds set by Constitution.
The act giving the court power to hear the case was invalid, thus the court’s
ability to consider ministerial actions in this matter is moot.
Federal Courts Can Overrule State Courts
It can be inferred that the framers intended for the federal courts to have
authority over state courts. Martin v. Hunter’s Lessee, the Virginia courts tried
to override the federal courts on a land dispute.
Local state judges should not have the final say on the Constitution. Cohens v.
Virginia.
Interpretive Limits of Federal Judicial Power
1.
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Ways to Interpret Constitution
Strict construction: the Constitution must explicitly say what you want out of
it. Ultra-conservative.
Narrow originalism: What was the narrow intent of the framers?
Textualism: Original wording and understanding
Evolving Constitution: Subject to new values (term is now pejorated).
What we want
Purpose-based originalism (falls anywhere you want). It guesses at purposes.
The example is District of Columbia v. Heller. Scalia looks at the purpose, analyzes
some grammar, admits there would be limits. The liberals argue about the
grammar and statistics.
C.
Congressional Limits on Judicial Power
1.
Limits Based on Exceptions Clause—McCardle
During Reconstruction, Congress passed a statute taking away the Court’s
jurisdiction to hear certain cases. The Court accepted this, but later in Yerger,
opined that it does have the authority to review cases that are in the federal
system anyway.
2.
Limits Based on Separation of Powers
In Klein, the Court refused to allow Congress to determine what evinced
treason and what did not. Whereas in Robertson, the Court allowed Congress
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to replace a statute and then direct that whatever met the new statute was
sufficient to meet the old statute, thus practically forcing some ongoing
decisions.
D.
Justiciability Limits on Federal Judicial Power
Courts are limited to hearing cases and controversies. There are five major
justiciability doctrines.
1.


Prohibition against Advisory Opinions
There must be an actual dispute between actual litigants.
There must be a substantial likelihood that the court’s opinion will have an
effect.
The Court dodged President Washington’s request for advice on state
matters and refused to allow Congress delegate it the power to
administer/hear pension stuff.
However, in Nashville & St. L. Ry. V. Wallace, the Court was willing to give a
declaratory judgment against a certain tax. Every case doesn’t have to be
completely traditional, there need only be the essentials of an adversarial
proceeding.
2.
Standing
a)
Constitutional Requirements
(1)
Injury
In Allen v. Wright, parents sued the IRS for not enforcing tax
penalties on allegedly racist schools. Injury must be distinct
and palpable—not merely abstract or conjectural. They
must directly suffer the injury. The IRS methods were also
discretionary.
In Massachusetts v. EPA, the Court held that Congress can
define injuries and causes. States can be vaguer on the injury,
especially where they represent people and have surrendered
powers to the government.
In City of L.A. v. Lyons, the court refused to put in an
injunction against the city of Los Angeles because the
plaintiff could not prove that he would be choked by police
officers in the future.
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In Lujan v. Defenders of Wildlife, Scalia did not buy that
someone who might go see crocodiles in the future is injured
by the government not enforcing wildlife regulations on
international projects funded by the U.S. government.
United States v. Hays: Gerrymandering case fails where people
are not residing in the affected district.
b)
(2)
Causation
There must be a clear cause either way.
(3)
Redressability
Very sharp, pragmatic blade.
Prudential Requirements
(1)
Party’s Own Rights
Singleton v. Wulff: If you can say that:


It is necessary to adjudicate the right
The party in question cannot adequately represent
right
Then, you can get away with third-party standing. This is the
doctors and the pregnant women. This has held with
bartenders, landlords of black people, etc. It doesn’t work
with someone who has refused to assert their own defense.
Newdow, the pledge of allegiance: Injuring the party you’re
representing is not good.
(2)
Plaintiff May Not Sue as Taxpayer Sharing Grievance
United States v. Richardson: Suing the CIA. You need to have a
personal stake, not a generalized grievance. This isn’t a
second chance for the voters to have their “reps” argue the
law.
The exception is Flast v. Cohen, in which the court says that
where you can establish a personal stake necessary to produce
concrete adverseness, you can fly. For instance, taxes funding
religious schools are bad. Nexus: 1. Taxpayer must establish
link between them and enactment. 2. Enactment must be
beyond Constitutional powers.
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However, in Hein v. Freedom From Religion Foundation, the
Court held that discretionary spending was a different thing.
(3)
3.
Zone of Interests (Applies to Statute Challenges)
Issues are not one-sided. On an environmental law, Congress
was probably thinking about both the environment and the
affected industries. If you stand to be directly affected, it is a
zone of interest, but not so much if you are merely making
wagers on things.
Ripeness
Issues are premature when the injury is speculative and may never occur. The
injury must have occurred or be imminent. The court prefers to see examples
of enforcement.
Poe V. Ullman, the mere existence of a state’s penal statute is not sufficient
for a court to adjudicate whether it is constitutional.
However, in Abbott Labs v. Gardner, the court allowed suit where violation of
the statute would be costly—imminent damage.
This will come up mostly where there has been no injury. Most decisions will
hinge on what you think about imminence.
4.
Mootness
The controversy must continue during the entire litigation. If criminal dies or
where there is a settlement or repealed law, the process ends. If there is no
controversy, then it becomes an advisory opinion. Injuries likely to recur
won’t get kicked out for mootness. This is anything pregnancy—like Roe v.
Wade.
Exceptions:
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5.
Capable of repetition, yet evading review
Defendant voluntarily ceases behavior but is free to return to it at any
time
Class Action—the representative might have a change of
circumstances
Political Questions
This is when the Court feels like it is up to other branches of government to
figure out what is proper. This can create problems because a lot of
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government people reckon they will do what they want until the Court tells
them otherwise.
Gerrymandering is difficult unless you find a way to fit it under the Equal
Protection clause.
Six Tests for Existence of Political Question:

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



II.
Textually demonstrable constitutional commitment of the issue to a
coordinate political department
Lack of judicially discoverable and manageable standards
Impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion
Impossibility of a court’s undertaking independent resolution without
disrespect for other branches of government
Unusual need for unquestioning adherence to a political decision
already made
Potentiality of embarrassment from ultifarious pronouncements by
various departments on the question.
a)
Political Question and Congressional Self-Governance
Powell v. McCormack, in which the House tried to expel a member
allows the Court to make a decision clearly in the Constitution
b)
Political Question and Foreign Policy
Goldwater v Carter, in which a senator sued the president for severing a
treaty was an example of the Court not saying anything on foreign
policy, particularly where the branches had not officially gone to each
other’s throats.
c)
Political Question and Impeachment
Nixon v. United States, in which the Court refused to tell Congress
how to carry out an impeachment.
Ways to Interpret and Argue Constitution
 Plain and ordinary meaning
 Expressio unius—strong reason, impliedly required and then otherwise not allowed
 Structural—word used elsewhere
 Hypotheticals
 Apparent Purpose
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A.
III.
Overturning A Case
 Wrongly decided
 Eroded Foundation
 Significant Reliance
 Workable standards possible
 Court’s reputation
The Commerce Clause Power and 10th Amendment Limits
Congress technically can act if it is given authority under the Constitution, while States have
general powers and can act unless prohibited. In any analysis, you might want to ask whether
Congress has authority under the Constitution to legislate on a matter and whether another
part of the Constitution blocks that particular legislation.
Those against state rights say national legislation is needed to solve problems. The other side
argues that state rights reduce federal tyranny, enhance democratic rule, and allow states to
be laboratories for new ideas. Some say that the states are adequately represented in
Congress and the Court need not worry about the 10th. Others point out that senators are no
longer elected by state legislatures.
A.
McCulloch v. Maryland, 1819, Necessary and Proper Clause
Let the end be legitimate, let it be within the scope of the Constitution, and all means
which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consistent with the letter and spirit of the Constitution are
constitutional.
B.
Commerce in General
Four Periods of Jurisprudence on the Commerce Clause




Early to 1890s: Broadly defined, minimally used
1890s to 1937: Narrowly defined, 10th invoked
1937 to 1990s: Broadly defined, ignoring the 10th
1990s to Present: Narrow, 10th invoked
People analyzing questions will ask about what commerce constitutes (what stage of
manufacturing, selling, etc.), what among the several states is, and whether the 10th is
relevant.
1.
Early to 1890s
Gibbons v. Ogden, 1824: Gibbons claimed federal authorization to operate a
ferry in violation of a New York-established monopoly. Court found it was
among the states, favored a broad interpretation.
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2.
1890s to 1937
The Court narrowly defined commerce and among the states while invoking 10th
often.
What is Commerce?
United States v. E.C. Knight Co., 1895: The Court declined to allow a monopoly
statute to stand with regard to a sugar monopoly, arguing that commerce is
transference, not manufacture.
Carter v. Carter Coal Co., 1936: Production and commerce are not the
same.
What is Among the States?
Shreveport Rate Cases, 1914: Congress may prevent carriers of both inter
and intrastate commerce from being used to injure interstate
commerce although intrastate transactions may thereby be controlled.
A.L.A. Schechter Poultry Corp. v. United States, 1935: A butcher that has bought
a chicken off a train cannot be said to be in the stream of interstate
commerce.
Swift & Co. v. United States, 1905: Stockyards are stream of commerce.
Does 10th Limit Congressional Powers?
One view holds that it is a reminder, the other view is that it actually means
something.
Hammer v. Dagenhart, 1918: States have sovereignty to regulate labor.
Congress cannot ban materials based on their production.
Champion v. Ames, 1903: Lottery tickets banned from crossing state borders.
3.
1937-1990s
What is Commerce?
NLRB v. Jones & Laughlin Steel Corp, 1937: Even if it is intrastate in nature, a
close, substantial relation to interstate commerce gives Congress the power
to regulate. Basically, if interstate commerce feels the effect of trouble,
Congress can come in.
United States v. Darby, 1941: Congress prohibits lumber that has been cut by
workers not properly compensated. Gibbons and Champion are the relevant
precedents. Congress can prohibit what is injurious to public, moral health.
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Wickard v. Filburn, 1942: Home grown wheat can have an effect on interstate
commerce.
What is Among the States?
Heart of Atlanta Motel, Inc. v. United States, 1964: The motel deals with people
travelling through the states. The caveat is that the means chosen must be
reasonably adapted to the end permitted by the Court.
Katzenback v. McClung, Sr. & McClung, Jr., 1964: Racist restaurant. About $70k
of food passes a state border.
Perez v. United States, 1971: Loan sharks.
Commerce Clause Reaches Three Problems
 Misuse of channels
 Protection of instrumentalities
 Activities affecting Commerce
10th Amendment?
Nat’l League of Cities v. Usery, 1976: Discretion of state governments is not to
be struck down. Overruled in Garcia v. San Antonio Metro. Transit Auth., 1985
which holds that it is difficult to figure out the traditional functions of
government.
4.
1990s to Present
Commerce Among the States:
United States v. Lopez, 1995. Of the three problems the Commerce Clause
reaches, the relevant one is activities having a substantial relation to
interstate commerce. Guns in school zones is not interstate commerce,
though some argue that there is a cumulative effect.
United States v. Morrison, 2000: The Court addresses the Violence to Women
Act. Once again, there is not a substantial relation to interstate commerce.
The Court sometimes will narrowly interpret a statute so as to avoid
having to answer the Commerce Clause question.
Pierce County, Washington v. Guillen, 2003: The highway improvement act
passed by Congress is a valid use of power to deal with channels of interstate
commerce.
Gonzales v. Raich, 2005: Homegrown marijuana may be regulated.
Furthermore, you have the necessary and proper clause here.
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Does the 10th Limit?
New York v. United States, 1992: Congress may not dictate what the state
legislature does though it can enact broad regulations the states must obey,
effectively forcing the legislature to shut up.
Printz v. United States, 1997: Congress may not commandeer executive
officials. This also degrades the President.
Reno v. Condon, 2000: Congress may go ahead and enact broad regulations that
the DMV has to follow as it falls into a larger category of public and private
entities.
IV.
Taxing and Spending Power
Congress has the power to lay and collect taxes.
United States v. Butler, 1936: Congress may tax to provide for the general welfare.
Sabri v. United States, 2004: Federal law prohibits bribery in any entity that receives federal
dollars. The Court invokes the necessary and proper clause.
A.
V.
Conditions on Grants to State Governments
Congress can put strings on grants so long as they are for general welfare,
expressly stated, and so long as they have some relationship to the purpose of
the spending program. See South Dakota v. Dole, 1987, dealing with drinking ages
and highway money.
Post-Civil War Amendments
Thirteen: No slavery
Fourteen: Everyone in U.S. is a citizen and you cannot rip them off. Due Process
Fifteen: Right to vote cannot be based on color or previous servitude
There is a strong tradition holding that these amendments apply to regulating the actions of
governments.
Katzenback v. Morgan & Morgan, 1966: Congress is allowed to take steps to solve a voting
rights problem.
City of Boerne v. Flores, 1997: The act is struck down as going beyond enforcing a recognized
right and creating other rights.
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VI.
Power of Congress to Authorize Suits against State Governments
The 11th allegedly prevents people from suing states. It has been interpreted that this applies
to state citizens and non-citizens. You can dodge this Amendment three ways:
 Sue an officer of the government
 State voluntarily and explicitly waives immunity
 States can be sued regarding 14th amendment
The 14th seems to be the only amendment that can override the 11th. Under §5 of the 14th,
Congress may pass prophylactic laws so long as they are congruent and proportional to a
problem that needs to be solved. Boerne seems to be the key to this standard.
Seminole Tribe of Florida v. Florida: The test is whether 1) Congress intended to abrogate the
11th and 2) whether it is constitutionally permissible. In this case, it is not. It must be tied to
the 14th.
Board of Trustees, Univ. Alabama v. Garrett, the authority in §5 limited only to state
transgressions.
Congress has more power when you’re dealing with Discrimination and Rights that receive
heightened scrutiny.
United States v. Georgia, Here is the analysis:
In considering whether a state government can be sued for violating a federal law
that authorizes such suits:
 Does plaintiff allege a constitutional violation? If yes, state can be sued. If
not:
 Is statute dealing with discrimination that receives heightened scrutiny? If
yes, state probably can be sued. If not:
 State may only be sued if Congress finds pervasive unconstitutional state
conduct.
Congress has no power whatsoever to authorize a suit in a state court.
VII.
Executive Powers
A.
Inherent Powers
The Constitution grants the President “executive powers,” rather than powers
“herein granted” like with Congress. In Youngstown Sheet &Tube v. Sawyer, the
President ordered seizure of steel mills because a strike threatened the supply chain
to Korea. There were no real precedents. Relying on structure and other things, the
formalist justices ruled that the President did not have such power, particularly where
Congress had declined to give him such power in previous opportune instances. The
dissenting justices argued for functionality, saying that it was necessary.
Page 13 of 18
VIII.
B.
Executive Privilege
Watergate. The President asserted privilege over everything. Once again, we have
formalists and functionals. The functionals seemed to think that an all-sweeping
privilege was necessary.
C.
Increasing Executive Power—Line Item Veto
When dealing with separation of powers, the first resource should the first line of
each branch’s section in the Constitution. It is difficult to enact laws and leave the
executive little discretion, however. In the line item veto case, the Court took a
formalist approach. So, what is the difference between legit executive actions of
discretion and actions that interfere with the legislative power?
D.
Legislative Veto
INS v. Chadha: The legislative veto was a commonly used feature where
administrative agencies could be given powers, but a single house of Congress could
pass a disapproval vote, effectively vetoing the action. This happened to Chadha
who had thought he had made it through the hoops. The Court demolished the
legislative veto, saying that the actions of Congress must be subject to
bicameralism and presentment requirements with the exception of ratifications,
impeachments, etc.
The Executive’s Administrative Powers
Originally, Congress enforced the non-delegation doctrine.
A.
Non-Delegation
Schechter Poultry v. United States: The poultry company was indicted for violating
Fair Competition code. This code was something where the President could make up
codes or delegate that to industry associations. This was found unconstitutional.
Panama Refining: The President was given power to control passage of illegal oil
across state borders. Congress gave no guidance.
B.
The Way Things Are Now
In Whitman v. American Trucking, the EPA is given authority to establish standards.
The test is whether an act delegates legislative power and what authority the statute
controls. The case turns on whether there is an intelligible principle guiding the
agency.
C.
Checking Admin Power Via Controlling Appointment/Removal
1.
Appointments
Congress provided that a Special Counsel could be appointed into the Justice
Department to investigate things. However, the President was not the one
doing the appointments. In Morrison v. Olson, the Court noted that Congress
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can make certain controls on the appointment of inferior officers. The
Special Counsel was apparently inferior, and the President’s inability to
choose one was upheld. Scalia strongly dissenting said that you can’t vest
power in an exec official without the President’s consent.
2.
Removal Power
President Andrew Johnson is the classic removal case. And then, follow this
string:
Myers: President has power to fire postmasters.
Humphrey’s Executor: Roosevelt removed guy from FTC. However, the Court
notes that the FTC was supposed to be independent with fixed tenure.
Particularly, the FTC exercised legislative and judicial powers.(See Wiener,
also.)
Bowsher: Congress cannot reserve control over officers that enforce law.
Morrison: Congress can put limits on inferior officers, such as good cause,
particularly where Congress isn’t really dictating how things run.
IX.
Separation of Powers and Foreign Policy
Congress has the power to regulate commerce with foreign nations, to declare war, make
rules concerning captures, raise and support armies, define piracy and felonies on the seas,
and offenses against the law of nations. The President is the leader of the military and has
the power to make treaties with consent of the Senate. But how is it now with foreign
policy?
A.
Is There a Difference between Foreign Policy and Domestic Affairs?
Does the separation of powers apply in foreign policy? Should the Constitution be
interpreted to give the President more inherent power?
United States v. Curtiss-Wright Export Corp: Congress passed a law authorizing the
President to stop the sale of arms to countries in the Chaco border dispute.
Roosevelt issued orders prohibiting sales. At this time period, it would have been an
unconstitutional delegation of powers. The Constitution carved out powers from
states and gave to the federal government. Foreign policy is national in nature.
Furthermore, the President can more efficiently deal with this. Critics of case say that
the Constitution does make provisions for foreign affairs and the absence is an intent
and that the President was intended to have limited powers.
B.
Treaties and Executive Agreements
Treaties need Senate ratification, Agreements need nothing, yet both are enforced as
the law. In Dames & Moore v. Regan, the court allowed for the legitimacy of an
Page 15 of 18
executive agreement concerning Iran that settled claims of nationals against their old
agreement. Congress has allowed this, even making complementary legislation.
C.
War Powers
What is a declaration of war? What about WWII or the Gulf of Tonkin? The Court
has little to say, seeing as it almost is a political question. The War Powers resolution
says that the President can send troops, has 48 hours to notify Congress, can have
them there for 60 days plus perhaps another 30 to retreat. No one seems to have
standing to challenge this.
D.
War on Terrorism
1.
Detentions
In Hamdi, the Court ruled that the detention acts were okay, but that U.S.
citizens detained in combat should have the opportunity to somehow
challenge their status, particularly where they were being held on U.S. soil.
Holding war prisoners is pretty routine, though there was an act to prevent it,
there is now an act providing for these detainees. How might it relate to
habeas corpus? Scalia pointed out that they should be tried as traitors.
Thomas thinks the President has inherent powers. Souter and Ginsburg say
there need to be clear authorization, and there is not.
In Boumediene, Congress had established the Military Commission Act, not
unlike previous military commissions. Non-citizen combatants may be held
and they do not have access to federal court via habeas corpus. The Court
does not buy that habeas corpus has been withdrawn. Furthermore, the
Court does not buy that these prisoners are not on U.S. soil and that there is
serious danger in allowing them some rights. The neutral factfinding thing
the executive set up is not sufficient. Roberts says that this bull crap and will
lead to soldiers having to give habeas corpus to every person we ever
capture.
2.
Military Tribunals
Withi Ex parte Quirin, the court held that German soldiers sent to the U.S. for
sabotage. They were busted and tried by a tribunal, but they argue they
should have been tried under the states. In the War declaration, Congress
seems to have provided for this. Order from the President in time of war
should not be set aside without clear conviction they are against the
Constitution or the laws of Congress. Belligerents may be treated this way.
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X.
Checks on the President
A.
Lawsuits
Nixon v. Fitzgerald: The President has immunity from lawsuits over decisions he has
made on discretionary stuff while in office. This is absolute. It does not make him
invincible from press or impeachment. Governors have qualified immunity,
however.
Clinton v Jones: The President can be sued for stuff not done while in office and for
non-official conduct.
B.
XI.
Impeachment
Largely a political question—but what is a high crime and misdemeanor?
Dormant Commerce Clause
State and local laws are unconstitutional if they place an undue burden on interstate
commerce. This assumption comes from the inferred dormant commerce clause.
A.
Arguments in Favor
 Historical: Framers intended to prevent state laws that interfered with
interstate commerce.
 Economic: The economy is better off if state and local laws impeding
interstate commerce are invalidated.
 Political: States and citizens should not be harmed by laws in other states
where they lack representation in the government.
B.
Criticisms
 Not textual
 Commerce clause gives no exclusivity
 Congressional inaction not a sufficient justification
 Jurisprudence is out of control
C.
Prior to 1938
Gibbons v. Ogden, Cooley v. Board of Wardens of Port of Philadelphia (local pilot or fined)
D.
Modern Test
 If a statute discriminates against interstate transactions, the Court will
scrutinize the statute closely. To avoid invalidation of statute, the state must
demonstrate that there is a legitimate, local purpose and that this purpose
cannot be served as well by available non-discriminatory means. (Maine v.
Taylor—golden shiners, Dean Milk v. City of Madison—no milk not produced
within 25 miles, pasteurized within 5 miles.)
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
E.
F.
If the statute only incidentally discriminates, (as in, not targeted to
discriminate, but hurts out-of-state people), the statute is held invalid only if
the burdens imposed are clearly excessive in relation to the putative local
benefits. (Pike v. Bruce Church—Arizona’s interest in cantaloupe stickers not
outweighed by sufferings of farming company; Bibb v. Navajo Freight Lines—
there is not legit benefit to contoured mud flaps; CF v. Kassel—single/double
semi-trucks; Southern Pacific v. Arizona—long trains banned; South Carolina v.
Barnwell Bros.—truck regulations okay.)
Is the Law Discriminatory?
1.
Facially Discriminatory
There is no question. City of Philadelphia v. New Jersey—out of state garbage
ban held invalid; Carbone—the ordinance requiring processing at the station
was discriminating against who could offer services—aka, favoring of a local
business; United Haulers—the government facility requirement okay—costs
passed onto citizens anyway; Hughes v. Oklahoma—Banning sell of minnow to
out of state people clearly discriminatory.
2.
Facially Neutral
Facially neutral laws may be struck down if they have the purpose or effect
of discrimination. Hunt v. Washington State Apple—ban on any grading system
other than USDA has very bad effect on Washington apple industry; Exxon
v. Maryland—refiners of gasoline legitimately banned from selling direct; West
Lynn Creamery v. Massachusetts—state taxes milk, subsidizes farmers
illegitimately together; Minnesota v. Clover Leaf—milk packaging.
Exceptions to Dormant Commerce
1.
Congressional Approval
Congress may approve a specific state law or authorize states to legislate in
specific areas. Such acts can be subjected to the usual standard commerce
jurisprudence. Western & Southern Life Insurance v. California—States given
power to regulate insurance, even if retaliatory taxes are the result.
2.
Market Participation Exception
Government-owned businesses and programs may discriminate freely. Reeves
v. Stake—South Dakota refuses to sell cement to out of state people; White v.
Massachusetts—Boston free to hire who it wants for construction; South Central
Timber v. Alaska—Alaska cannot attach conditions for use of what it is
selling.
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