con law: feb 8 2010 class notes

foreign affairs power.
interesting side article about foreign affairs power 
not enumerated.
some belong to the executive and some belong to the congress.

preemption.
see zschernig.
see garamendi.
souter - field preemption.
dissent - "bedfellows" test doesnt' really apply, skeptics of dormant disabling effects of preemption, and skeptics of
same idea of implication of nat'l power is same in foreign powers and dormant commerce clause

dormant commerce clause.
art. I can be read by two ways: (1) nation has executive power or (2) there's no limit to the state's power.

there may be a third position: (3) some limit to federal and/or state powers

see gibbins v. ogden: the clash is between a federal power exercised and state power exercised which is inconsistent with the other.
the court decides as a preemption case. US doesn't say that the power is exclusively national. states may do things that affect interstate commerce, but doesn't really stem a
US revisits in willson v. black bird creek marsh co. US states that monitoring police powers is not contrary to any dormant national powers.
US visits again in e.c. knight co.

cooley v. board of wardens
a 1789 federal statute provided that the waterways will be piloted as the states regulate, until congress speaks further.
a PA law states that the ships entering and leaving phila. must have a local pilot hired. understandable, readable force behind this law is to monopolize jobs in their waters.
how do we know that this statute is not meant to limit the congressional power?

modern dormant commerce clause doctrine (p.259)
in our world, we know both interstate commerce and state commerce.
nowadays, courts follow a balancing test: courts are essentially making commerce is nationalized because it is at the core of the problem that the original congress was trying to fix.
current US reading of national power: "we're in this together"
what do states do when they cross that objective? dormant commerce clause.

phila. v. nj
"solid waste is bad so we're getting rid of some of it"
what's the dormant commerce clause application? tiers of scrutiny. the court is looking at a facial discrimination against local commerce, it's based on suspicion instead of actualized validity.
suspicion and strict scrutiny are the right places to start. "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected."
nj argues health needs for facial discrimination.
dissent says that it makes no sense to have an all-or-nothing rule.

compelling state interests.
see pike v. bruce church, inc. for the pike (balancing) test

recapping everything to this point
what's the threshold question to distinguish elements of the commerce clause (i.e. what's the difference between lopez and phila v. nj)?

"has congress exercised its power?"
if yes --> our inquiry to states is "does the fed'l law give the state permission/consent (green light to act) or is it exclusively preemptive (state hits a wall)?"
if no --> dormant commerce clause concerns: (1) facial discrimination, (2) non-discrimination/ pike's test, (3) something in between