[SOUND] I said that in this part of the lecture, I wanted to talk about federalism, the limits that it exists on state and local government power. I said I wanted to discuss two. One was preemption which I've already talked about. The other that I want to discuss is the Dormant Commerce Clause. Now the very titles make it sound complicated, and it is, but it is a very important part of Constitutional Law. The Dormant Commerce Clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. In other words, even though Congress has not acted, its commerce power lies dormant. A state of local law would be declared unconstitutional it has found a place in excessive burden on interstate commerce. There's no provision in the constitution that say's this. The supreme court is inferred it from the grant of power to Congress to regulate commerce among the states. Now this then means that the commerce power, Congress sought authority where they commerce with foreign nations, Indian tribes in and among the states. Has two really very different meanings. One that I discussed in considering the Federal legislative power, is this authority for Congress to act. The other which I'm focusing on here is a limit on what state local governments can do, that's the Dormant Commerce Class. In other words even though Congress has not acted, the Supreme Court has said that state or local laws will be unconstitutional if it puts too much of a burden on interstate commerce. Let me give a couple of examples, then let me talk about why this exists, and why it's so important and then talk about the legal approach that courts use for it. Some easy examples, there's a case, Philadelphia versus New Jersey. New Jersey adopted a law that prohibited out of state garbage from being buried in New Jersey land fills. Perhaps this was done for environmental reasons to limit the amount of garbage that was coming into the state. Perhaps it was done for economic reasons by limiting the amount of garbage from out of the state, restricting the amount of garbage that needs to be buried that then would mean there be less demand for landfill space. Less demand would help keep the price of landfill disposal down which would then be to the benefit of New Jersey residents. But the Supreme Court declared the New Jersey law unconstitutional. The Supreme Court said that New Jersey was discriminating against commerce or be it commerce in garbage from other states. And it was placing in undue burden on interstate commerce, so this was unconstitutional. Or I'll give you another example. A more recent supreme court case but ten years ago, Granholm versus Heald. Michigan adopted a law that said that in-state wineries could ship wine to consumers through the mail, but wineries outside the state of Michigan could not ship wine to consumers through the mail. I confess, until I read this case, I didn't know there were wineries in the state of Michigan. The Supreme Court declared the Michigan law to be unconstitutional. The court said it put a substantial burden on interstate commerce, it favored in-state companies over out-of-state companies, and it was found to violate the Dormant Commerce Clause. Why has the court found a Dormant Commerce Clause? Actually goes all the way back early in the 19th century, some of it is historical. In the first part of the lecture, when I was talking about what led to the Constitutional Convention in 1787, I mentioned the trade wars that were developed among the states. How port states charged large fees to landlocked states to have access to the ports. Landlocked states retaliated and above all what led to the Constitutional Convention was to give Congress the power to regulate commerce among the states. Well the Supreme Court is also said that framers in the Constitution wanted to make sure that the states were not putting in undue burden on interstate commerce. It's not realistic to expect congress to use it's legislative power to invalidate all the laws to put to much of a burden on interstate commerce. Congress certainly can always act to preempt state local laws but the courts have thought, it's important, even in the absence of Congressional action, to allow courts to strike down state and local laws that put too much of a burden on interstate commerce. There's also a political explanation for why the court has created the Dormant Commerce Clause. If one state Is putting a burden on other states, then the residents of those states can't protect themselves through the political process. Imagine that Michigan says, as it did, that only in state wineries can sell wine to consumers in the mail, out of state wineries cannot. The out-of-state wineries don't have any representation in the Michigan political process. It's not there for Michigan to be able to harm them, when they have no chance to help themselves to the Michigan political process. So for all of these reasons, for 200 years, the Supreme Court has said But even that's not mentioned in the constitution, there is a Dormant Commerce Clause. The principle to state local laws that place an undue burden unrealistic commerce are unconstitutional. Some justices most notably Justices Scalia and Thomas sharply questioned the Dormant Commerce Clause, and they want to eliminate it. In a large part of this is Tomas entirely. Their view is the Dormant Commerce Clause is isn't mentioned in the Constitution. It shouldn't be found for Congress wants to stop a state a local law that puts the burden on estate commerce, Congress can do so. But Justice Scalia and Tomas stand alone. Stand alone among justice throughout history as the Supreme Court has always followed the Dormant Commerce Clause. In terms of the law of the Dormant Commerce Clause, the Supreme Court has always said that the key distinction is whether the state of local law is discriminated against out-of-staters. If the state or local law discriminates against out-of-staters, there's a strong presumption that it violates the Dormant Commerce Clause, that it puts some kind of a burden on an interstate commerce. On the other hand, if the state or local law burdens interstate commerce, but doesn't discriminate against out-of-staters then it's much more likely to be upheld. Let me make all of this concrete rather than abstract. The Supreme Court has said if a state or local government discriminates against out-of-stater's and puts a burden on state commerce. It's action is going to be allowed only if it's necessary to achieve some very important, some compelling government interest. Think about the cases that I mentioned a moment ago, Philadelphia versus New Jersey, New Jersey adopts a law that says no out-of-state garbage can be buried in New Jersey landfills, the law is blatantly discriminatory against out-of-staters. And the Supreme Court found it to violate the Dormant Commerce Clause, or Granholm versus Heald. Michigan saying in-state wineries can ship wine to consumers in the mail but out-of-state wineries cannot. Blatantly discriminatory against out-of-staters and found to be unconstitutional. In fact, there's only one Supreme Court case in history that is ever up held a discriminatory law in the face of Dormant Commerce Clause challenge, this case called Maine versus Taylor. Maine adopted a law that said that no out-of-state bait fish could be imported into the state of Maine. The state was concerned that the out-of-state fish might carry parasites that will endanger species indigenous to Maine. The Supreme Court upheld that law even though it was discriminatory and even though it put a burden on inner state commerce. The Supreme Court said that Maine had an important interest in protecting its natural resources. The court said there's no other way for Maine to achieve this but to prohibit the importing into the state of this out-of-state fish. And so if the court concludes that a state or local law discriminates against out-of-staters. Then in all likelihood, the law is unconstitutional. It violates the Dormant Commerce Clause. On the other hand, what if it's a state or local law that puts a burden on our state commerce, but it doesn't treat in-staters and out-of-staters differently? In other words, what if the state or local law puts a burden on interstate commerce but it doesn't discriminate against out-of-staters? Here the court has said, it's going to be much more permissive of state and local laws. The court has said it's just going to use a balancing test. The law will be struck down only if the burdens on interstate commerce outweigh benefits from the law. Again, let me give you an example of this, Illinois adopted a law that said, that all trucks up in the state had a curved mud guards, almost every other state allowed straight mud guards. The Illinois law obviously was not discriminatory, it applied to all trucks operating the state, whether owned by in-staters or out-of-staters. Nonetheless, the Supreme Court declared the Illinois law unconstitutional Is violating the Dormant Commerce Clause even though it was non-discriminatory. The court said the Illinois law put a substantial burden on the state commerce. Either trucks would have to stop at the border to change their mud guards, or they'd have to avoid Illinois entirely. The court said there was no evidence that curved mud guards were safer than straight mud guards. Therefore since the burdens on interstate commerce outweigh the benefits, the law was founded to violate the Dormant Commerce Clause. Whenever a state or local government legislates, it does so in a way that puts a burden on interstate commerce on other states. There can be a challenge under the Dormant Commerce Clause. The way the courts proceed is to ask does the state or local law discriminate against out-of-staters or does it treat in- staters and out-of- staters alike? If it's discriminatory, in all likelihood it's unconstitutional. It'll be allowed only if it meets the heavy burden being necessary to achieve a compelling purpose. If it's non-discriminatory, it's likely to be allowed. The court will allow it unless the burden's on a state commerce outweigh the benefits of the law. This is something that comes up in so many different contexts. State regulation of agricultural products. There have been case involving state regulations of apples and cantaloupe. State regulation of food products, these come up in the context of milk regulation. State regulation of business, state environmental laws. All of these have raised issues of the Dormant Commerce clause. So in thinking about federalism is a limited state government power, it's always worth asking first. Has the federal government preempted the state or local action? And if not then ask does the state or local action put so much of a burden interstate commerce is to violate the Dormant Commerce Clause? These principles are about the relationship of state governments to one another the relationship to the national government and ultimately to question how much do I want to get a brought up towards to the states? And how much do we want to restrict what states can do in the national interest?
