State-Level Discrimination Against Out-of Staters - Dormant If a state law's purpose OR effect is to substantially burden interstate

Commerce Clause commerce, it will be shown invalid/unconstitutional.

FIRST - Is there proof Facially Discriminatory - Facially Neutral Law [terms treat in & out of staters NOT facially discriminatory but has
of a discriminatory generally per se invalid. alike] but has Discriminatory Purpose or Effect - affect on interstate commerce
purpose or effect? effects per Hunt - raising cost of doing business; [in-staters & out-of-staters treated
removing competitive advantage of another state's alike]
costly enterprise, leveling effect on local business
against better out-of-state people
Strict Scrutiny - Strong Presumption
SECOND - Apply Balance the burden on interstate
Against Discriminatory Laws -
proper test - commerce with the benefit of the state
Is the law narrowly tailored to fit a - does the burden on interstate
specific problem? commerce clearly exceed legitimate
Is there a compelling state purpose for local benefits? [note - clearly exceed is
the law? a high standard]
Does the state have alternatives
available? Is it using the least
restrictive means possible to achieve
their purpose?

Market Participation Exception - Allows states to favor their

Congressional Approval - If Congress own citizens in receiving benefits from govt programs and in
THIRD - Does an dealing with govt owned businesses.
exception apply? approves a state law, it is now endorsed by
the Commerce Clause. Ex. public universities - since state is providing a service rather
than regulating, they can discriminate against out-of-state
parties by offering lower in-state tuition.
Facially
Philadelphia v. NJ - local regulations that Carbone v. Clarkstown [ordinance required all waste in town West Lynn - [facially neutral tax law
discriminatory but
clearly discriminate against out of state go to 1 transfer station] - discriminatory due to effect on discriminatory] - MA taxed all milk
passed strict
articles of commerce on their face are out-of-staters & only one local operator could be used depriving dealers but used funds to pay subsidies
scrutiny - Maine v.
unconstitutional; NJ waste can't be out of state businesses of access to a local market but to in state dairy farmers.
Taylor - ME
distinguished from waste of other states; considered facially discriminatory - because it said "you must Unconstitutional bc discriminatory
prohibited
legitimate heath measure but accomplished send your trash here" impact - in staters & out of staters both
importation of
by protectionist means. taxed but in staters basically refunded
baitfish; law upheld
Hunt v. Wash State Apple - discrimination based on so tax was borne disproportionately by
despite being
Dean's Milk Co. v. Madison [city ordinance discriminatory impact against out-of-staters; practical effect of out of staters. Relationship btw tax &
discriminatory -
required all milk sold in city be pasteurized not only burdening interstate sales of WA apples but also subsidy was unconstitutional [both
nearly impossible to
within 5 miles]; - local regulations treating out discriminating against them. Court very concerned about fact legal/valid on their own].
determine if bait
of states in a disparate manner will be treated law seemed intentionally discriminatory. Raised cost of doing - When nondiscriminatory tax + subsidy
had parasites &
as discriminatory even tho they also business for WA producers but not NC ones; prohibited WA from to 1 group hurt by tax = state's political
allowing them would
discriminate against in-staters. using competive advantage it earned; leveling effect operating to process can't be relied on to prevent
place ME's
advantage of local apple producers. legislative abuse bc 1 of the in-state
population of wild
interests that may lobby against tax
fish at risk.
Policy for - won't bc refunded by subsidy.
How far should courts go in inferring discriminatory intent from neutral
laws w effect of distinguishing btw in state & out of state interests? Policy against - Ultimately -
Should Court deal with states dicriminating against out of state - National unity approach - U.S. should be one integrated - Should cts be aggressive in striking down
interests - Congress has power to regulate commerce & can market state/local laws burdening national
invalidate state laws unduly burdening interstate commerce by - Economic approach - states try to discriminate against economy or adopt general posture of
enacting statute. interstate commerce to gain benefits w/o pasing associating deference & invalidate laws only in
- Separation of powers argument against DCC - unelected judiciary costs, shouldn't be able to benefit off of discrimination of exceptional & extreme circumstances?
shouldn't make these decisions, supposed to interpret the other states. - How important is it for state & local laws
Constiution, not make policy - maybe a political question, interferes - McCulloch - part of why MD tax struck down was bc tax interfering with interstate commerce be
with democracy because task of reviewing state laws should be done ultimately borne by those w/o say in political process - not invalidated?
by Congress [state laws invalidated & they have no choice in who represented by state, taxation without representation - states - Views on appropriate allocation of power
invalidates them - no accountability]. shouldn't be harmed by laws in other states where they lack bt Congress, states, & judiciary.
- Federalism argument against DCC - want to minimize instances represention. -Perhaps formalist approach best - statutes
where state/local laws invalidated. -Maybe political process can't be trusted when state w/ geographical terms viewed w/ great
Does mere fact Const. gives Congress power to regulate interstate advantages itself at expense of out of staters w/ no suspicion, if states told to never use them,
commerce prevent a state from taking a particular action that affects representation. will adopt fewer protectionist or otherwise
interstate commerce, assuming Congress hasn't acted in that area -Congress has much more urgent matters, can't review vast troublesome statute than states whose
[no Supremacy issues]? array of state/local laws may be challenged as burdening actions tested against complicated
interstate commerce; judicial action necessary. standards.