Introduction The Commerce Clause is a grant of power to Congress, not an express limitation on the power of the states to regulate the economy. At least four possible interpretations of the Commerce Clause have been proposed. First, it has been suggested that the Clause gives Congress the exclusive power to regulate commerce. Under this interpretation, states are divested of all power to regulate interstate commerce. Second, it has been suggested that the Clause gives Congress and the states concurrent power to regulate commerce. Under this view, state regulation of commerce is invalid only when it is preempted by federal law. Third, it has been suggested that the Clause assumes that Congress and the states each have their own mutually exclusive zones of regulatory power. Under this interpretation, it becomes the job of the courts to determine whether one sovereign has invaded the exclusive regulatory zone of the other. Finally, it has been suggested that the Clause by its own force divests states of the power to regulate commerce in certain ways, but the states and Congress retain concurrent power to regulate commerce in many other ways. This fourth interpretation, a complicated hybrid of two others, turns out to be the approach taken by the Court in its decisions interpreting the Commerce Clause. Justice Curtis, in Cooley v Board of Wardens (1851) outlines the case for recognizing, as a constitutional matter, zones of exclusive federal authority over commerce and other zones of concurrent state and federal authority. Cooley, upholding a Pennsylvania law requiring that vessels entering Philadelphia harbor use of local pilots, applies a balancing test to judge the validity of the regulation. Show
Baldwin v G. A. F. Seelig (1935) invalidated a New York law prohibiting the sale in the state of New York of milk bought outside of New York. New York argued the law was necessary to avoid price competition that would drive dairies into producing less wholesome milk. The Court, more realistically, saw the law as protectionist. Justice Cardozo wrote that when "a state tries to isolate itself economically" it must show an important interest for doing so and that it had no less discriminatory mean open for accomplishing its goal. Cardozo's test has become the standard test for evaluating state laws that discriminate against out-of-state commerce. In another New York milk case, H. P. Hood and Sons v Dumond (1949), the Court applied the Baldwin test for protectionist laws
to the state's denial of a license to operate a depot to collect milk for distribution to Boston. The Court saw the license denial as an effort by New York to horde a resource and thereby keep prices for its consumers low. Dean Milk Co. v Madison (1951) deals with discrimination against out-of-state (as well as much in-state) commerce not by a state, but by a city. At issue in yet another milk case was a Madison, Wisconsin ordinance that prohibited the sale of milk in Madison that was bottled more than five miles from the city's center. The ordinance was justified by Madison as necessary to facilitate inspection by city dairy inspectors. Finding the ordinance discriminatory and believing that reasonable non-discriminatory alternatives existed, the Supreme Court invalidated the ordinance despite the fact that a Milwaukee dairy was shut out of town just as much as one from Illinois. Edwards v California (1941) considered a challenge to a California law aimed at reducing the influx of dustbowl indigents to the state. The California statute made it a crime to bring into the state any indigent non-resident. Finding people in this case to be "articles of commerce," the majority found the statute to be a form of unconstitutional discrimination against out-of-state commerce. (Four concurring justices would have preferred to invalidate the law on 14th Amendment privileges and immunities grounds.) In Philadelphia v New Jersey (1976), the Court struck down a New Jersey law that prohibited the importation of garbage into the state. Concluding that garbage was "commerce," the Court viewed the law--despite its environmental justification--as unconstitutional discrimination agains out-of-state commerce. The Court held that as long as reasonable, non-discriminatory alternatives exist that serve the states legitimate interests, they must be used instead of a discriminatory ban. In Hughes v Oklahoma (1979), the Court invalidated an Oklahoma law prohibiting the interstate transportation of minnows taken from Oklahoma waters. The Court rejected Oklahoma's law that states "own" wildlife and therefore wildlife is not "an article of commerce." The law could be upheld only if the state could show it served a significant local interest that could not be furthered by a non-discriminatory law--this Oklahoma could not show. Maine v Taylor (1986) is a rare example of a Supeme Court decision upholding a state statute that discriminated against out-of-state commerce. The Court accepted the trial court's findings
that no non-discriminatory alternatives to Maine's ban on the importation of live baitfish adequately served the state's interest in preventing the introduction into Maine waters of new parasites and non-native fish species that might upset Maine's ecosystems. In Hunt v Washington State Apple Ass'n
(1977), the Court determined that a North Carolina law that allowed only one grade (the U. S. Dep't of Agriculture's grade) to be placed on containers of apples sold in the state. Washington's State Apple Ass'n contended that the law discriminated against Washington apples which are shipped in containers that include its own tougher state grades. Concluding that a discriminatory effect (not a discriminatory intent) is all that is necessary to trigger the Baldwin test of a significant
state interest and no non-discriminatory alternatives available, the Court invalidated North Carolina's apple-grading law. In the consolidated cases of Granholm v Heald and Swedenburg v Kelly, involving challenges to Michigan and New
York laws respectively, the Supreme Court considered whether the 21st Amendment gave states the power to discriminate against out-of-state liquor distributers in ways that would otherwise clearly violate the Commerce Clause. In its 2005 decision, the Supreme Court, on a 5-4 vote, found that state laws that prohibited out-of-state wineries from selling wine over the Internet directly to consumers violated the Commerce Clause. The four dissenters interpreted
Section 2 of the 21st Amendment as giving broad authority to states to ban such sales. [LINK to Swedenburg Estate Vineyard website] So. Pacific Co. v Arizona (1945) demonstrates that state laws might violate the Commerce Clause even
when in-state and out-of-state commerce are treated equally. The case involved a challenge to Arizona's law prohibiting trains from crossing the state that contained more than 70 freight cars. Southern Pacific complained that the law required them to choose between disassembling at the Arizona border larger trains, making two runs across the state, and then reassembling the trains or avoiding Arizona altogether. Arizona argued the law was a safety measure designed to minimize
the risk of "slack action" accidents to which longer trains are susceptible. The Court applied a test that balanced the state's safety interest against what it saw as the very substantial burden the law imposed on interstate commerce. The law was struck down. The same test was used in 1959 to strike down an Illinois law requiring trucks to have contoured rear fender mudguards rather than the straight mud guard flaps required by most other states (Bibb v Navajo Freight)
and in 1978 to invalidate a Wisconsin law that limited truck length to 55 feet at a time when most long haul truck lines had gone to 65 foot trucks (Raymond Motor Transportation v Rice).
In United Haulers Assoc. v Oneida-Herkimer Solid Waste Management Authority (2007), the Court, by a vote of 6 to 3, upheld a New York law that required trash haulers in a region to deliver their waste to a county-owned waste treatment facility. Justice Roberts, writing for the Court, concluded that the law not discriminatory because it did not favor a private in-state trash facility, but rather a government-owned facility,
and therein lies a constitutional difference. The burden of the "flow control" law, in the form of more expensive trash service, falls on in-state residents and could not be seen as an attempt to shift costs to out-of-state businesses. Because the law was deemed non-discriminatory, the Court applied its balancing test and found that the local benefits of the law (effective financing of waste disposal and increased recycling) outweighed the abstract harm on out-of-state businesses of
removing waste processing services from the national marketplace. Our last two cases deal with the "market participant" exception to Commerce Clause analysis. In Reeves v Stake (1980), the Court considered South Dakota's preference for selling cement from its state-owned Dacotah Cement plant to South Dakota customers. Concluding that South Dakota was acting as a market participant rather than as a regulator of commerce, the Court upheld the state's preference for in-state customers. Reeves was distinguished in South-Central Timber Development Inc v Wunnicke (1984), which invalidated Alaska's policy of insisting that high-bidders on state-owned timber agree to process some of the timber they purchased at Alaskan sawmills. The Court saw the bidding rules as an attempt to control commerce "down the stream," and that therefore the state was acting as a regulator, not as a mere market participant. The Commerce Clause The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. CasesEarly Case Harbor of Philadelphia in the 1840s Cooley v Bd. of Wardens (1851) Discrimination Against Out-of-State Commerce: The Milk
Cases Baldwin v G. A. F. Seelig Inc. (1935) H.P. Hood & Sons v Du Mond (1949) Dean Milk Co. v Madison (1951) Discrimination Against Out-of-State Commerce: Other Cases Edwards v California (1941) Philadelphia v New Jersey (1978) Hughes v Oklahoma (1979) Maine v Taylor (1986) Hunt v Wasington State Apple Advertising Comm'n (1977)Discrimination Against Out-of-State Commerce: Different Rules for Liquor? (Power of States Under 21st Amendment) Granholm v Heald/ Swedenburg v Kelly (2005) Facially Neutral Laws: The Balancing Test Market
Participant Exception The Dacotah Cement plant in Rapid City, owned by the state of South Dakota. South Dakota's preference for in-state buyers of cement from this plant was challenged in Reeves v State (1980). Southern Pacific train. H. P. Hood & Sons. The company successfully challenged New York's denial of its license to distribute milk collected in New York to Boston. Questions 1. Which interpretation of the Commerce Clause
outlined in the introduction makes the most sense? Why? What was the purpose of the Interstate Commerce Act quizlet?What was the main purpose of the Interstate Commerce Act of 1887? The Interstate Commerce Act was created to limit the monopolistic practices of the railroad industry.
Why did Congress enact the Interstate Commerce Act quizlet?congress passed this law because of the public outrage. This act reestablished the right of the federal government to supervise railroad activities and established a five-member Interstate Commerce Commission (ICC) for that purpose.
How did the federal government's power expand in the early 1800s quizlet?How did the federal government's power expand in the early 1800s? The Supreme Court supported Congress's ability to regulate interstate commerce, and The Supreme Court ruled that Congress had the power to establish a national bank.
Which of the following clause of the Constitution regulates the relationship between the national government and the many states?The supremacy clause in Article VI of the Constitution regulates relationships between the federal and state governments by declaring that the Constitution and federal law are the supreme law of the land.
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