Federal Limits on State Power
Constitutional Provisions
States can not impose legislation/regulations where the Constitution precludes them from being able to act in that space.
Express Pre-Emption
The Statue on its face states that it pre-empts state laws.
Roots of Dormant Commerce Clause
Dormant Commerce Clause is rooted in the Commerce Clause - if Congress can regulate interstate commerce, they can regulate things that have a substantial burden on interstate commerce.
Article 4, Section 2
The citizens of each state shall be retiled to the privileges and immunities of the several states.
Supremacy Clause
Pre-Emption
Taxing Federal Government
Taxing the Federal Government
Supremacy Clause, being Supreme Law of the Land, precludes state governments from imposing taxes directly on the Federal Government. The States can tax independent contractors working for the Government, but they can not tax the Government itself.
Discrimination v. Non-Discrimination
Discrimination against out of state residents: Strict Scrutiny
Non-Discrimination against out of state residents: Intermediate Scrutiny.
The question is whether people outside the state are being treated differently than those inside the state.
Privileges and Immunities Protected by the Clause
(1) Fundamental Constitutional Rights
(2) Important economic activities
Looking at ability to earn a living, livelihoods/trades being taken to other states.
Does not implicate purely recreational activities (i.e., hunting and fishing licenses).
Dormant Commerce Clause
Distinguishes between discriminatory and non-discriminatory regulations..
Implied Pre-Emption - Field
Where Congress has passed a statute and (1) the legislative background indicates Congress intended to be the sole regulator, or (2) the breadth of the state is such that it can be inferred Congress intended to be the sole regulator.
Analysis of Dormant Commerce Clause Challenges & Requirements for Implicating Dormant Commerce Clause
Requires burdens being placed on interstate commerce.
Discrim: Presumed unconstitutional and burden on State to show it was necessary to achieve an important purpose and the least restrictive means that could have been used.
Non: Exercise of state power unless burden on interstate commerce excessively outweighs the benefit to the state. Wide discretion to Government.
Analysis of Privileges and Immunities Challenges
(1) Is it burdening one of the protected privileges and immunities?
(2) State action has a sufficient justification
(3) Substantial reason for the State's discrimination.
(4) Substantial reason bears a substantial relationship to the regulation.
Looks at least restrictive means and whether the out of staters are more acutely the catalyst of the issue being resolved but not determinative.
No requirement that it occur in the commercial setting.
Privileges and Immunities Clause
A limit on the State government from discriminating against citizens of other states on the basis of (1) fundamental constitutional rights or (2) important economic activities.
Discrimination is required to employ this protection.
Implied Pre-emption - Conflict
Where governments are regulating in the same space, and Federal and State legislation can not both be complied with at the same time.
Market Place Participant Exception
(1) State owned business selling goods in the market. *Can not create conditions or regulations that have effects outside the Market under this exception.
(2) State is giving benefits through a benefits program.
In these instances, they are allowed to favor their own citizens.
DCC: Non-Discrim Regulations Treated as Discriminator
Court hasn't been clear or expanded under this clause, but indicated that if the purpose, legislative history or downstream effects are discriminatory then they may treat the regulation as discriminatory, despite it being facially neutral and treating all individuals the same.
Exceptions to the Dormant Commerce Clause
Market Participant Exception
Congressional Approval Doctrine
Implied Pre-Emption - Interference with Federal Objective
Where state objectives fail to align with the objectives of federal action in the same space. If the actions share the same objective, they are likely to not be pre-empt.
Congressional Approval Doctrine