con law: feb 22 2010 class notes

recap of the dormant commerce clause. 

state activity: dormant commerce clause is to protect against discrimination in interstate commerce.

federal legislative silence: in this realm of states behaving as protectionists/discriminators, congress has not implemented any laws about interstate discrimination. if they had, congress might have created a preemption statute.

the const. gives the nation enumerated power in this area. commerce clause.

what happens when a state acts in a discriminatory manner against interstate commerce?

what case is the blatant example that facial discrimination won't fly? phila v. nj
when a state discriminates in this way, the state action is discrimination virtually per se.

see maine v. taylor: the state must have a legitamate local purpose to discriminate. and this exercise of the legitimate purpose is excersise of state police power. what wouldn't qualify as exercise of police power? first, any exercise that discriminates against bill of rights and due process.

is there less discriminatory means to achieve the end? this is strict scrutiny.

non-discriminatory. see the pike's test.

s. pacific v. arizona.
"the question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interestate train journey which it interrupts."

kassel v. consolidated freightways corp.

facially neutral regulations with discriminatory effects on interstate commerce:

dean milk co v. madison
this is not a case of facial discrimination (it would be phila. v nj)
what's the test of validity? the court still applies strict scrutiny to this non-facial discrimination case.
how could madison get around the discriminatory effects? the city could have employed a more standard method that is generic and ungeographically motivated (like the model milk ordinance, for example)
why is this case still one of strict scrutiny? because the effect is the same as facial discrimination.

hunt v. washington state apple advertising commission
NC doesn't want any label besides usda label on apples in their state. is there a non-discriminatory way to do that? there's no reason to confine it only to usda.

exxon v. gov of maryland

purpose. with/out effect, who cares about purpose? if you try to discriminate against interstate commerce, but you don't are you culpable? if you don't try to discriminate but you do, are you culpable?

hp hood v. dumond