Commerce Clause
Congress may not aggregate ________ under CC
non-economic activity
What is the general idea of the Anti-commandeering doctrine
Congress may not coerce/compel states into enacting federal regulation.
Congress can regulate states’ activities so long as it does not force or compel the states to enforce fed. legislation or fed. agencies’ regulations
When is dormant commerce clause available
State or local law excessively burdens commerce among the states, then its unconstitutional
It is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.
What are the two functions of the dormant commerce clause
Authorization for Congressional Action
Limiting the state and local regulation
Dormant Commerce Clause Case:
This case used many different Dormant CC tests:
Pike test: examining the practical effects of the regulation/law could reveal a discriminatory purpose.
And in cases applying Pike, the presence or absence of discrimination was decisive = it’s use is to “smoke out a hidden protectionism.”
Heavily referenced Exxon: “’But the dormant Commerce Clause does not protect a “particular structure or method of operation.’ That goes for pigs no less than gas stations.”
Facts: Cal. law banned the sale of pork from piggies that were kept in inhumane conditions
National Pork Producers Council v. Ross
What are the three broad categories of activity that Congress may regulate under CC?
What are some examples of each one?
Channels of interstate commerce (i.e. infrastructure and what commerce travels on)
INSTRUMENTALITY of interstate commerce (goods, the people, and machines used)
Substantial relation to interstate commerce
What are the two ways Congress can encourage a state to adopt a legislative program?
And what power can they use to do it?
Under taxing and spending power - Congress may attach conditions to federal funding.
Preemption=Congress could set federal standards through regulation, which the state and local action would then have to meet
What are the two exceptions to Dormant Commerce Clause
(1) Congress approves the law
(2) Market Participant Doctrine
When do you apply the Pike Test
the law is facially neutral and burdens interstate commerce
Dormant Commerce Clause Case:
Gave us the Test: The purpose or effect of the law is discriminatory
Apple USDA Standards versus other Apple standard
Hunt v. Washington
On the exam, what do you do if you find that Congress is regulating commerce that is "substantially related" to commerce?
You start looking to see if the activity is economic or non-economic.
What is a jurisdictional Hook in CC?
Where Congress drafts a statute in a way that requires a jurisdictional hook between the particular activity and commerce, the act is more likely to be found within the commerce power.
They’re essentially adding an element to the statute that requires the activity being regulated to interstate commerce.
What is the policy Argument for Dormant Commerce Clause
preserves a national market for goods and services; plus protectionist legislation, discriminatory to out-of-staters, cannot be remedied by the political process.
What is the Pike Balancing Test
When the law is discriminatory or places an undue burden on interstate commerce, it can be constitutional when it is shown to be necessary to achieve an important or legitimate state interest and there are no less restrictive/discriminatory means available.
What case gave us the 3 categories of commerce?
(Gun Free zone case)
United States v. Lopez
What power can Congress use to enact regulations that prevent racially discriminatory policies because of the negative effects those actions have on interstate commerce?
(not a trick question lol)
Why can’t this problem be fixed by the 14th Amend. Equal Protection
Commerce Clause
Cannot use the 14th A. because the hotel is a private establishment, the 14th A. is not applicable to individuals and companies but state actors
What does the 10th Amendment limit and why?
10th amendment limits congressional power to regulate commerce in a different way than the commerce clause does. Congressional actions can have the effect of impeding the imposing upon the states so the 10th amendment helps prevent this.
Big Analysis-> walk me through DCC (Dormant Commerce Clause)
•Focus on whether the law is discriminatory against out of staters or goods?
•Is it discriminatory on its face?
•Is it facially neutral with discriminatory purpose?
•If yes to those two, consider that the court is going to apply a more “rigorous” standard to discriminatory laws: that’s the narrowly tailored, no non-discriminatory alternative.
•If neutral with discriminatory effect, note that Watts states that the court seemed to care less when it was done without discriminatory purpose. (this also seems like an area where it could turn into a pike balancing test)
•If neutral, and only incidentally impacts interstate commerce?
•Exxon, National Pork Producers, Pike, Bibb = note National Pork producers in talks of 12b6 stuff stated that the substantial effects on interstate commerce must be demonstrated before the Court begins to balance the separate cost/benefits of the burden and the local interests.(this isn’t a clear rule, just another thing to consider)
Factors that the Court considered in their determination that the law was constitutional: (this was found in Exxon v. Maryland)
does not prohibit the flow of interstate goods.
does not place added costs upon them.
does not distinguish between in state and out of staters.
does not create a barrier into the market for independent dealers out of state.
What is our huge CC case that talks about Anti-Commandeering?
(OBAMA)
National Federation of Independent Business v. Sebelius
Walk me through a Commerce Clause Question what would you say?
1) What is Congress regulating?
⚬Is it a channel?
⚬Instrumentality?
⚬Is it an activity that substantially relates/effects interstate commerce?
2) If under “substantial effects” - is it economic or noneconomic activity?
⚬Economic (concerning production, consumption or distribution of interstate commerce; commercial transaction) = aggregate.
⚬Non-economic (Lopez: possession not enough; Morrison: violence not enough) (too attenuated to interstate commerce alone) = look for jurisdictional hook.
3) Is it limited by the 10th amendment or another provision of the constitution?
⚬Federalism
⚬Separation of powers
⚬Individual liberties
What is considered Economic activity?
What is considered non-Economic activity
Economic: production, consumption, or distribution
Non-economic examples: possession and violence
When looking at Market Participant Exception, what is something you need to keep in mind?
(Alaska Timber Case)
a state may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market
What is an outlier in the DCC when dealing with discriminating against out of staters?
(Maine v. Taylor; fishy fishy case)
States may prohibit the importation of out-of-state goods moving within the flow of commerce as long as the prohibition serves a legitimate local purpose and there are no available less discriminatory means to accomplish that same purpose.
Rule: Congress can enact regulations that prevent racially discriminatory policies because of the negative effects those actions have on interstate commerce.
(YOOO THAT BBQ IS CHEAP AS HELL)
KATZENBACH V. MCCLUNG