Russell Dunlap's Profile

First

Second

no right to appeal

any conviction would be reviewed by a panel consisting of three military officers designated by the Secretary of Defense

no doubt that the various individuals assigned review power under Commission Order No. 1 would strive to act impartially and ensure that Hamdan receive all protections to which he is entitled. Nonetheless, these review bodies clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces, and thus bear insufficient conceptual similarity to state courts to warrant invocation of abstention principles.

circumstances of this case

Quirin “provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the processes of military commissions.”

Government has identified no other “important countervailing interest” that would permit federal courts to depart from their general “duty to exercise the jurisdiction that is conferred upon them by Congress.”

Hamdan and the Government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial—rules intended to safeguard the accused and ensure the reliability of any conviction

The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity.

even Quirin did not view the authorization as a sweeping mandate for the President to “invoke military commissions when he deems them necessary.”

Quirin Court recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions—with the express condition that the President and those under his command comply with the law of war

Government would have us dispense with the inquiry that the Quirin Court undertook and find in either the AUMF or the DTA specific, overriding authorization for the very commission that has been convened to try Hamdan

Neither of these congressional Acts, however, expands the President’s authority

First

Likewise

DTA obviously “recognize[s]” the existence of the Guantanamo Bay commissions in the weakest sense, Brief for Respondents 15, because it references some of the military orders governing them and creates limited judicial review of their “final decision[s],” DTA §1005(e)(3),

119 Stat.
2743. But the statute also pointedly reserves judgment on whether “the Constitution and laws of the United States are applicable” in reviewing such decisions and whether, if they are, the “standards and procedures” used to try Hamdan and other detainees actually violate the “Constitution and laws.” Ibid.

Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the “Constitution and laws,” including the law of war.

Commissions historically have been used in three situations

First

Second

third t

jurisdiction limited to offenses cognizable during time of war, but its role is primarily a factfinding one—to determine, typically on the battlefield itself, whether the defendant has violated the law of war.

Since Guantanamo Bay is neither enemy-occupied territory nor under martial law, the law-of-war commission is the only model available. At the same time, no more robust model of executive power exists; Quirin represents the high-water mark of military power to try enemy combatants for war crimes

First,

four preconditions for exercise of jurisdiction by a tribunal of the type convened to try Hamdan

Second

Third

Finally

whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary tribunal have been satisfied here.

Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war.

deficiencies in the time and place allegations also underscore—indeed are symptomatic of—the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission.

These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict

When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution

(“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds”); The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison)

At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction,³⁵ and does not appear in either the Geneva Conventions or the Hague Conventions

Government cites three sources that it says show otherwise

First

Second

Finally

these sources at best lend little support to the Government’s position and at worst undermine it. By any measure, they fail to satisfy the high standard of clarity

Court declined to address whether the offense actually qualified as a violation of the law of war

The Government, defending its charge, argued that the conspiracy alleged “constitute[d] an additional violation of the law of war.” Id., at 15. The saboteurs disagreed; they maintained that “[t]he charge of conspiracy can not stand if the other charges fall.” Id., at 8

Court, however, declined to resolve the dispute.

The Court was careful in its decision to identify an overt, “complete” act.

No mention was made at all of Charge IV—the conspiracy charge.

Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war. Not only did the Court pointedly omit any discussion of the conspiracy charge, but its analysis of Charge I placed special emphasis on the completion of an offense;

limitation makes eminent sense

swift justice

same urgency would not have been felt vis-À-vis enemies who had done little more than agree to violate the laws of war

Winthrop and Howland are only superficially more helpful to the Government

no support for the inclusion of conspiracy as a violation of the law of war

Winthrop, apparently recognizing as much, excludes conspiracy of any kind from his own list of offenses against the law of war

footnote will not support the weight the Government places on it.

regularly tried war crimes and ordinary crimes together.

later in his discussion, when he emphasizes that “overt acts” constituting war crimes are the only proper subject at least of those military tribunals not convened to stand in for local courts.

Henry Wirz

Wirz was alleged to have personally committed a number of atrocities against his victims, including torture, injection of prisoners with poison, and use of “ferocious and bloodthirsty dogs” to “seize, tear, mangle, and maim the bodies and limbs” of prisoners, many of whom died as a result.

co-conspirators, R. B. Winder, should not be tried by military commission because there was as yet insufficient evidence of his own personal involvement in the atrocities: “[I]n the case of R. B. Winder, while the evidence at the trial of Wirz was deemed by the court to implicate him in the conspiracy against the lives of all Federal prisoners in rebel hands, no such specific overt acts of violation of the laws of war are as yet fixed upon him as to make it expedient to prefer formal charges and bring him to trial.”

international sources confirm that the crime charged here is not a recognized violation

conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a “concrete plan to wage war.”

Government has failed even to offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission.

Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities

None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war

arrested in November 2001 and he was not charged until mid-2004

commission lacks power to proceed

compliance

also violate the Geneva Conventions.

great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

Congress has not issued the Executive a “blank check.”

Nothing prevents the President from returning to Congress to seek the authority he believes necessary

exceeds limits that certain statutes, duly enacted by Congress, have placed on the President’s authority to convene military courts

It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority.

Trial by military commission raises separation-of-powers concerns of the highest order

without independent review

Concentration of power puts personal liberty in peril of arbitrary action by officials,

three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet

President has acted in a field with a history of congressional participation and regulation

Justice Jackson’s third category

Common Article 3 of the four Geneva Conventions of 1949

an acceptable degree of independence from the Executive is necessary to render a commission “regularly constituted” by the standards of our Nation’s system of justice

The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context

At a minimum a military commission like the one at issue—a commission specially convened by the President to try specific persons without express congressional authorization—can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice.

the circumstances of Hamdan’s trial present no exigency requiring special speed or precluding careful consideration of evidence.

Court is correct to conclude that the military commission the President has convened to try Hamdan is unauthorized

Hamdan’s military commission exceeds the bounds Congress has placed on the President’s authority in §§836 and 821 of the UCMJ

Detainee Treatment Act

well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs

indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity.

context of the President’s wartime exercise of his commander-in-chief authority in conjunction with the complete support of Congress

“ ‘unity,’ ”

the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated.

d trial

language of Article 21 presupposes the existence of military commissions under an independent basis of authorization

emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war

The Constitution forbids a “State . . . without the Consent of Congress, [to] lay any Duty of Tonnage.” Art. I, §10, cl. 3. The city of Valdez, Alaska, has enacted an ordinance that imposes a personal property tax upon the value of large ships that travel to and from that city. We hold that the ordinance violates the Clause.

personal property tax upon “[b]oats and vessels of at least 95 feet in length” that regularly travel to the City, are kept or used within the City, or which annually take on at least $1 million worth of cargo or engage in other business transactions of comparable value in the City.

Polar Tankers argued that the tax effectively imposed a fee on certain vessels for the privilege of entering the port; hence it amounted to a constitutionally forbidden “Duty of Tonnage.”

also argued that the tax calculation method (as applied to vessels with a tax situs elsewhere) violated the Commerce and Due Process Clauses by failing to take account of the time a ship spent at sea or being serviced or repaired

The Alaska Superior Court rejected the Tonnage Clause claim, but it accepted the Commerce Clause and Due Process Clause claim.

the Alaska Supreme Court, rejecting both claims, upheld the tax.

concluded that “a charge based on the value of property is not a duty of tonnage.”

We begin, and end, with Polar Tankers’ Tonnage Clause claim. We hold that Valdez’s tax is unconstitutional because it violates that Clause. And we consequently need not consider Polar Tankers’ alternative Commerce Clause and Due Process Clause argument.

“Duty of Tonnage,” referred in commercial parlance to “a duty” imposed upon a ship, which duty varies according to “the internal cubic capacity of a vessel,” i.e., its tons of carrying capacity

Court found that the Framers intended those words to refer to more than “a duty” that sets a “certain rate on each ton” of capacity.

The Court over the course of many years has consistently interpreted the language of the Clause in light of its purpose, a purpose that mirrors the intent of other constitutional provisions which, like the Tonnage Clause itself, seek to “restrai[n] the states themselves from the exercise” of the taxing power “injuriously to the interests of each other.”

Article I, §10, cl. 2, for example, forbids States to “lay any Imposts or Duties on Imports or Exports.” It thereby seeks to prevent states with “convenient ports” from placing other States at an economic disadvantage by laying levies that would “ta[x] the consumption of their neighbours.”

In writing the Tonnage Clause, the Framers recognized that, if “the states had been left free to tax the privilege of access by vessels to their harbors the prohibition against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise.”

also understood the Clause as reflecting an effort to diminish a State’s ability to obtain certain geographical vessel-related tax advantages whether the vessel in question transports goods between States and foreign nations or, as here, only between the States.

the Court has said that the Clause, which literally forbids a State to “levy a duty or tax . . . graduated on the tonnage,” must also forbid a State to “effect the same purpose by merely changing the ratio, and graduating it on the number of masts, or of mariners, the size and power of the steam-engine, or the number of passengers which she carries.”

nothing in the history of the adoption of the Clause, the purpose of the Clause, or this Court’s interpretation of the Clause suggests that it operates as a ban on any and all taxes which fall on vessels that use a State’s port, harbor, or other waterways

Tonnage Clause cannot be read to give vessels such “preferential treatment.”

Does the tax before us impose “a charge for the privilege of entering, trading in, or lying in a port”? Certainly, the ordinance that imposes the tax would seem designed to do so.

Moreover, the tax’s application and its amount depend upon the ship’s capacity. That is to say, the tax applies only to large ships (those at least 95 feet in length), while exempting small one

Nor can Valdez escape application of the Clause by claiming that the ordinance imposes, not a duty or a tax, but a fee or a charge for “services rendered” to a “vessel,” such as “pilotage,” “wharfage,” “medical inspection,” the “use of locks,” or the like

Tonnage Clause precedent makes clear that, where a tax otherwise qualifies as a duty of tonnage, a general, revenue-raising purpose argues in favor of, not against, application of the Clause.

The ordinance applies almost exclusively to oil tankers.

We conclude that the tax is unconstitutional. We re

we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.

e pres

we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.'

we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.'

whether Mississippi runs afoul of the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, when it applies the tax it imposes on 'the privilege of . . . doing business' within the State to appellant's activity in interstate commerce.

The taxes in question are sales taxes assessed by the Mississippi State Tax Commission against the appellant, Complete Auto Transit, Inc.,

Appellant is a Michigan corporation engaged in the business of transporting motor vehicles by motor carrier for General Motors Corporation.

By letter dated October 5, 1971, the Mississippi Tax Commission informed appellant that it was being assessed taxes and interest totaling $122,160.59 for the sales of transportation services during the three-year period from August 1, 1968, through July 31, 1971.

Appellant claimed that its transportation was but one part of an interstate movement, and that the taxes assessed and paid were unconstitutional as applied to operations in interstate commerce.

Appellant's attack [on the Mississippi statute] is based solely on decisions of this Court holding that a tax on the 'privilege' of engaging in an activity in the State may not be applied to an activity that is part of interstate commerce.

Appellee, in its turn, relies on decisions of this Court stating that '(i)t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business,'

Court has applied this practical analysis in approving many types of tax that avoided running afoul of the prohibition against taxing the 'privilege of doing business,' but in each instance it has refused to overrule the prohibition. Under the present state of the law, the Spector rule, as it has come to be known, has no relationship to economic realities. Rather it stands only as a trap for the unwary draftsman.

The modern origin of the Spector rule m

Mr. Justice Frankfurter, speaking for five Members of the Court, announced a blanket prohibition against any state taxation imposed directly on an interstate transaction.

the rule might have been utilized as the keystone of a movement toward absolute immunity of interstate commerce from state taxation,11 the Court consistently has indicated that 'interstate commerce may be made to pay its way,' and has moved toward a standard of permissibility of state taxation based upon its actual effect rather than its legal terminology.

The Court recognized that 'where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer's business done within the state, including both interstate and intrastate.'

tax on the 'privilege' of doing business is unconstitutional if applied against what is exclusively interstate commerce

The Court long since had recognized that interstate commerce may be made to pay its way.

The Spector rule had come to operate only as a rule of draftsmanship, and served only to distract the courts and parties

clear that Connecticut could have taxed the apportioned net income derived from the exclusively interstate commerce. It could not, however, tax the 'privilege' of doing business as measured by the apportioned net income.

'It is a truism that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation.

If Mississippi had called its tax one on 'net income' or on the 'going concern value' of appellant's business, the Spector rule could not invalidate it. There is no economic consequence that follows necessarily from the use of the particular words, 'privilege of doing business,' and a focus on that formalism merely obscrues the question whether the tax produces a forbidden effect

we now reject the rule of Spector Motor Service, Inc. v. O'Connor, that a state tax on the 'privilege of doing business' is per se unconstitutional when it is applied to interstate commerce, and that case is overruled.

After settling claims against the health center and clinician, Levine brought an action for damages against Wyeth, relying on common-law negligence and strict-liability theories

Although Phenergan’s labeling warned of the danger of gangrene and amputation following inadvertent intra-arterial injection,¹ Levine alleged that the labeling was defective because it failed to instruct clinicians to use the IV-drip method of intravenous administration instead of the higher risk IV-push method

The importance of the pre-emption issue

persuaded us to grant Wyeth’s petition for certiorari

whether the FDA’s drug labeling judgments “preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.”

First, “the purpose

guided by two cornerstones of our pre-emption jurisprudenc

Second, “[i]n all p

Wyeth first argues that Levine’s state-law claims are pre-empted because it is impossible for it to comply with both the state-law duties underlying those claims and its federal labeling duties.

Generally speaking, a manufacturer may only change a drug label after the FDA approves a supplemental application. There is, however, an FDA regulation that permits a manufacturer to make certain changes to its label before receiving the agency’s approval.

“changes being effected” (CBE) regulation

. On the record before us, Wyeth has failed to demonstrate that it was impossible for it to comply

Impossibility pre-emption is a demanding defense

Wyeth also argues that requiring it to comply with a state-law duty to provide a stronger warning about IV-push administration would obstruct the purposes and objectives of federal drug labeling regulation.

interfere with “Congress’s purpose to entrust an expert agency to make drug labeling decisions

We find no merit in this argument, which relies on an untenable interpretation of congressional inten

Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation

The most glaring problem with this argument is that all evidence of Congress’ purposes is to the contrary.

Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers

If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history

Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness. As Justice O’Connor explained in her opinion for a unanimous Court: “The case for federal pre-emption is particularly weak where Congress has indicated its awareness

and has nonetheless decided to stand by

In addition, federal law does not give drug manufacturers an unconditional right to market their federally approved drug at all times with the precise label initially approved by the FDA.

I cannot join the majority’s implicit endorsement of far-reaching implied pre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s “purposes and objectives” pre-emption jurisprudence.

a system of dual sovereignty between the States and the Federal Government.” G

As a result, in order to protect the delicate balance of power mandated by the Constitution, the Supremacy Clause must operate only in accordance with its terms.

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2.

the Supremacy Clause gives “supreme” status only to those that are “made in Pursuance” of “[t]his Constitution.”

Federal laws “made in Pursuance” of the Constitution must comply with two key structural limitations in the Constitution that ensure that the Federal Government does not amass too much power at the expense of the States.

first structural limitation,

second structural limitation

I have become “increasing[ly] reluctan[t] to expand federal statutes beyond their terms through doctrines of implied pre-emption.”

concerns that implied pre-emption doctrines have not always been constitutionally applied

for example, the Court has pre-empted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law

Congressional and agency musings, however, do not satisfy the Art. I, §7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.

Pre-emption analysis should not be “a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict.”

In sum, the relevant federal law did not give Wyeth a right that the state-law judgment took away, and it was possible for Wyeth to comply with both federal law and the Vermont-law judgment at issue here

See ante, at 23–24, and nn. 13–14; post, at 6–9 (opinion of Alito, J.). In Geier, pursuant to the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act)

The Court’s decision in Geier to apply “purposes and objectives” pre-emption based on agency comments, regulatory history, and agency litigating positions was especially flawed, given that it conflicted with the plain statutory text of the saving clause within the Safety Act, which explicitly preserved state common-law actions by providing that “[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law,”

Applying “purposes and objectives” pre-emption in Geier, as in any case, allowed this Court to vacate a judgment issued by another sovereign based on nothing more than assumptions and goals that were untethered from the constitutionally enacted federal law authorizing the federal regulatory standard that was before the Court

also problematic because it encourages an overly expansive reading of statutory text

As this Court has repeatedly noted, “ ‘it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.’

a statute’s text might reflect a compromise between parties who wanted to pursue a particular goal to different extents

there is no factual basis for the assumption underlying the Court’s “purposes and objectives” pre-emption jurisprudence that every policy seemingly consistent with federal statutory text has necessarily been authorized by Congress and warrants pre-emptive effect.

But the relevance is in the fact that no statute explicitly pre-empts the lawsuits, and not in any inferences that the Court may draw from congressional silence about the motivations or policies underlying Congress’ failure to act.

But once the Court shows a willingness to guess at the intent underlying congressional inaction, the Court could just as easily rely on its own perceptions regarding congressional inaction to give unduly broad pre-emptive effect to federal law.

This case illustrates that tragic facts make bad law

We conclude that the challenged ordinance is properly subject to the strictures of the Clause. We therefore reverse the judgment of the Supreme Court of New Jersey and remand the case for a determination of the validity of the ordinance under the appropriate constitutional standard

In light of the decision in White, appellant has abandoned its Commerce Clause challenge to the Camden ordinance.

only question left for our consideration is whether the Camden ordinance, as now written, violates the Privileges and Immunities Clause.7

We first address the argument, accepted by the Supreme Court of New Jersey, that the Clause does not even apply to a municipal ordinance such as this. Two separate contentions

first, that the

second, that

first argument can be quickly rejected.

one cannot easily distinguish municipal from state action in this case:

e second argument merits more consideration.

Clause is phrased in terms of state citizenship and was designed "to place the citizens of each State upon the same footing with citizens of other States

The primary purpose of this clause

help fuse into one Nation a collection of independent, sovereign States.

We cannot accept this argument. We have never read the Clause so literally as to apply it only to distinctions based on state citizenship

out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden.

e conclude that Camden's ordinance is not immune from constitutional review at the behest of out-of-state residents merely because some in-state residents are similarly disadvantaged

Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two-step inquiry.

court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause.

whether an out-of-state resident's interest in employment on public works contracts in another State is sufficiently "fundamental" to the promotion of interstate harmony so as to "fall within the purview of the Privileges and Immunities Clause

pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.

Public employment, however, is qualitatively different from employment in the private sector

no fundamental right to government employment for purposes of the Equal Protection Clause

the distinction between market participant and market regulator relied upon in White to dispose of the Commerce Clause challenge is not dispositive in this context. The two Clauses have different aims and set different standards for state conduct.

Commerce Clause acts as an implied restraint upon state regulatory powers.

The Privileges and Immunities Clause, on the other hand, imposes a direct restraint on state action in the interests of interstate harmony.

This concern with comity cuts across the market regulator-market participant distinction that is crucial under the Commerce Clause.

It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce

that same exercise of power to bias the employment decisions of private contractors and subcontractors against out-of-state residents may be called to account under the Privileges and Immunities Clause.

The opportunity to seek employment with such private employers is "sufficiently basic to the livelihood of the Nation,"

The city of Camden contends that its ordinance is necessary to counteract grave economic and social ills.

, we find it impossible to evaluate Camden's justification on the record as it now stands. No trial has ever been held in the case. No findings of fact have been made. The Supreme Court of New Jersey certified the case for direct appeal after the brief administrative proceedings

It would not be appropriate for this Court either to make factual determinations as an initial matter or to take judicial notice of Camden's decay.

wise to remand the case t

What the dissent fails to appreciate is that the Camden ordinance at issue in this case was adopted pursuant to a comprehensive, state-wide program applicable in all New Jersey cities.

dissent's proposed blanket exemption for all classifications that are less than state-wide would provide States with a simple means for evading the strictures of the Privileges and Immunities Clause.

For over a century the underlying meaning of the Privileges and Immunities Clause of the Constitution's Article IV1 has been regarded as settled: at least absent some substantial, noninvidious justification, a State may not discriminate between its own residents and residents of other States on the basis of state citizenship.2

Today, however, the Court casually extends the scope of the Clause by holding that it applies to laws that discriminate among state residents on the basis of municipal residence

Zobel v. Williams, 457 U.S. 55,

The Court declined, however, to hold that the statute violated the Privileges and Immunities Clause.

the Court fails to attend to the functional considerations that underlie the Privileges and Immunities Clause.

discrimination on the basis of municipal residence is substantially different in this regard from discrimination on the basis of state citizenship

What the Court fails to appreciate is that this avenue of relief for New Jersey residents works to protect residents of other States as well; disadvantaged state residents who turn to the state legislature to displace ordinances like Camden's further the interests of nonresidents as well as their own

The Court's refusal to accept such an exemption is understandable; what is curious is why the Court attributes the exemption to this dissent.

practically equivalent to those explicitly identified by the Clause

The Court fails to explain why a classification that benefits all state residents other than the residents of a single locality stands in the same position, in terms of the practical considerations underlying the Clause, as a classification that benefits only the residents of one locality.

The fact that no State has attempted anything resembling the Court's proposed maneuver in the two centuries since the adoption of the Clause, despite the fact that none of this Court's precedents has foreclosed the option, strongly suggests that state political processes can be trusted to prevent this kind of Balkanization

"market participants." In

on the record before us the application of the mayor's executive order to the contracts in question did not violate the Commerce Clause

city expended only its own funds in entering into construction contracts for public projects,

Unlike all other States in the West and Midwest, App. 605, Iowa generally prohibits the use of 65-foot doubles within its borders.

Notwithstanding these restrictions, Iowa's statute permits cities abutting the state line by local ordinance to adopt the length limitations of the adjoining State

Iowa also provides for two other relevant exemptions. A

Because of Iowa's statutory scheme, Consolidated cannot use its 65-foot doubles to move commodities through the State. Instead, the company must do one of four things:

Dissatisfied with these options, Consolidated filed this suit in the District Court averring that Iowa's statutory scheme unconstitutionally burdens interstate commerce.8

Iowa defended the law as a reasonable safety measure enacted pursuant to its police power.

On the question of safety, the District Court found that the "evidence clearly establishes that the twin is as safe as the semi."

"there is no valid safety reason for barring twins from Iowa's highways because of their configuration.

"The evidence convincingly, if not overwhelmingly, establishes that the 65 foot twin is as safe as, if not safer than, the 60 foot twin and the 55 foot semi. . . .

the District Court applied the standard we enunciated in Raymond Motor Transportation,

and concluded that the state law impermissibly burdened interstate commerce:

Eighth Circuit affirmed. 6

(1980). We now affirm.

Iowa thus substantially burdens the interstate flow of goods by truck.

Iowa's law is now out of step with the laws of all other Midwestern and Western States

here, as here, the State's safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate transportation,

the state law cannot be harmonized with the Commerce Clause.

Consolidated, meanwhile, demonstrated that Iowa's law substantially burdens interstate commerce.

Thus, if 65-foot doubles are as safe as 55-foot singles, Iowa's law tends to increase the number of accidents, and to shift the incidence of them from Iowa to other States

Iowa urges the Court simply to "defer" to the safety judgment of the State. It argues that the length of trucks is generally, although perhaps imprecisely, related to safety

Less deference to the legislative judgment is due, however, where the local regulation bears disproportionately on out-of-state residents and businesses.

Such a disproportionate burden is apparent here. I

two particularly significant exemptions. First,

Second cities abutting

The origin of the "border cities exemption" also suggests that Iowa's statute may not have been designed to ban dangerous trucks, but rather to discourage interstate truck traffic.

In sum, the statutory exemptions, their history, and the arguments Iowa has advanced in support of its law in this litigation, all suggest that the deference traditionally accorded a State's safety judgment is not warranted.

The judgment of the Court of Appeals is affirmed.

nearly identical to the Wisconsin regulation struck down in Raymond Motor Transportation

I engage in the debate between my Brothers POWELL and REHNQUIST over what the District Court record shows on the question whether 65-foot doubles are more dangerous than shorter trucks.

analysis of Commerce Clause challenges to state regulations must take into account three principles: (1)

(2) The burdens

(3) Protectionist l

Both the opinion of my Brother POWELL and the opinion of my Brother REHNQUIST are predicated upon the supposition that the constitutionality of a state regulation is determined by the factual record created by the State's lawyers in trial court

supposition cannot be correct, for it would make the constitutionality of state laws and regulations depend on the vagaries of litigation rather than on the judgments made by the State's lawmakers.

It is not the function of the court to decide whether in fact the regulation promotes its intended purpose, so long as an examination of the evidence before or available to the lawmaker indicates that the regulation is not wholly irrational in light of its purposes

Though my Brother POWELL recognizes that the State's actual purpose in maintaining the truck-length regulation was "to limit the use of its highways by deflecting some through traffic," ante, at 677, he fails to recognize that this purpose, being protectionist in nature, is impermissible under the Commerce Clause

"Iowa's length restriction causes the trucks affected by the ban to travel more miles over more dangerous roads in other states which means a greater overall exposure to accidents and fatalities.

Iowa may not shunt off its fair share of the burden of maintaining interstate truck routes, nor may it create increased hazards on the highways of neighboring States in order to decrease the hazards on Iowa highways

"if safety justifications are not illusory, the Court will not secondguess legislative judgment about their importance in comparison with related burdens on interstate commerce."

Here, the decision of Iowa's lawmakers to promote Iowa's safety and other interests at the direct expense of the safety and other interests of neighboring States merits no such deference.

The result in this case suggests, to paraphrase Justice Jackson, that the only state truck-length limit "that is valid is one which this Court has not been able to get its hands on."

I believe the analysis in both opinions oversteps our "limited authority to review state legislation under the commerce clause,"

eriously intrudes upon the fundamental right of the States to pass laws to secure the safety of their citizens. Accordingly, I dissent.

all cantaloupes grown in Arizona and offered for sale must 'be packed in regular compact arrangement in closed standard containers approved by the supervisor * * *.'2

the court issued a permanent injunction upon the ground that the challenged order constituted an unlawful burden upon interstate commerce

prohibiting the company from shipping its cantaloupes out of the State unless they were packed in containers in a manner and of a kind approved by the appellant. Because cantaloupes in the quantity involved can be so packed only in packing sheds, and because no such facilities were available to the company at Parker or anywhere else nearby in Arizona, the company faced imminent loss o

The appellant's threshold contention here is that even though the challenged order expressly forbids the interstate bulk shipment of the company's cantaloupes, it imposes no burden upon interstate commerce

Articles being made ready for interstate movement are not necessarily yet in interstate commerce

Here, by contrast, the perishable cantaloupes were destined to be shipped to an ascertainable location in California immediately upon harvest.

taxes in Federal Compress and Chassaniol were imposed on goods and operations within the State, whereas the application of the statute at issue here would require that an operation now carried on outside the State must be performed instead within the State so that it can be regulated there.

Thus it is clear that the appellant's order does affect and burden interstate commerce, and the question then becomes whether it does so unconstitutionally.

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

If a legitimate local purpose is found, then the question becomes one of degree. A

more frequently it has spoken in terms of 'direct' and 'indirect' effects and burdens. Se

Its purpose and design are simply to protect and enhance the reputation of growers within the State. These are surely legitimate state interest

Therefore, as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act. We may further assume that Arizona has full constitutional power to forbid the misleading use of its name on produce that was grown or packed elsewhere.

t application of the Act through the appellant's order to the appellee company has a far different impact, and quite a different purpose.

The appellant's order would forbid the company to pack its cantaloupes outside Arizona, not for the purpose of keeping the reputation of its growers unsullied, but to enhance their reputation through the reflected good will of the company's superior produce.

The appellant, in other words, is not complaining because the company is putting the good name of Arizona on an inferior or deceptively packaged product, but because it is not putting that name on a product that is superior and well packaged.

But the State's tenuous interest in having the company's cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the State.

The nature of that burden is, constitutionally, more significant than its extent.

For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere

While the order issued under the Arizona statute does not impose such rigidity on an entire industry, it does impose just such a straitjacket on the appellee company with respect to the allocation of its interstate resources.

But here the State's interest is minimal at best—

excludes “interest on any State or local bond”

Commonwealth’s tax benefit to residents who buy its bonds makes lower interest rates acceptable,⁵ while limiting the exception to Kentucky bonds raises in-state demand for them without also subsidizing other issuers.

Funding the work of government this way follows a tradition going back as far as the 17th century

Differential tax schemes like Kentucky’s have a long pedigree, too.

Today, 41 States have laws like the one before us.

sued the tax collectors in state court on a refund claim that Kentucky’s differential taxation of municipal bond income impermissibly discriminates against interstate commerce in violation of the Commerce Clause of the National Constitution.

“market-participant” exception

We granted certiorari owing to the conflict this raised on an important question of constitutional law, and because the result reached casts constitutional doubt on a tax regime adopted by a majority of the States. 550 U. S. ___ (2007). We now reverse.

we have sensed a negative implication in the provision since the early days

dormant Commerce Clause is driven by concern about “economic protectionism

we ask whether a challenged law discriminates against interstate commerce.

exception covers States that go beyond regulation and themselves “participat[e] in the market” so as to “exercis[e] the right to favor [their] own citizens over others.” A

no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market,

⁹ This logic applies with even greater force to laws favoring a State’s municipal bonds, given that the issuance of debt securities to pay for public projects is a quintessentially public function

Kentucky must prevail.

Bonds place the cost of a project on the citizens who benefit from it over the years, see ibid., and they allow for public work beyond what current revenues could support,

fundamental element of dormant Commerce Clause jurisprudence, the principle that “any notion of discrimination assumes a comparison of substantially similar entities.”

Viewed through this lens, the Kentucky tax scheme parallels the ordinance upheld in United Haulers: it “benefit[s] a clearly public [issuer, that is, Kentucky], while treating all private [issuers] exactly the same.”

The Davises make a fair point to the extent that they argue that Kentucky acts in two roles at once, issuing bonds and setting taxes, and if looked at as a taxing authority it seems to invite dormant Commerce Clause scrutiny of its regulatory activity

The Commonwealth has entered the market for debt securities, just as Maryland entered the market for automobile hulks, see Alexandria Scrap

But there is no ignoring the fact that imposing the differential tax scheme makes sense only because Kentucky is also a bond issuer.

ut when Kentucky exempts its bond interest, it is competing in the market for limited investment dollars, alongside private bond issuers and its sister States, and its tax structure is one of the tools of competition.

The failure to appreciate that regulation by taxation here goes hand in hand with market participation by selling bonds allows the Davises to advocate the error of focusing exclusively on the Commonwealth as regulator and ignoring the Commonwealth as bond seller,

The Kentucky tax scheme falls outside the forbidden paradigm because the Commonwealth’s direct participation favors, not local private entrepreneurs, but the Commonwealth and local governments.

eye toward making some or all of its bonds more marketable

The Davises’ request for Pike balancing assumes an answer to an open question: whether Pike even applies to a case of this sort.

We need not decide this question today, however, for Kentucky has not argued that Pike is irrelevant,

disadvantages that the Davises’ counsel attributes to

Second, it similarly harms

“First, it harms

Third, it harms th

Fourth, it harms K

Fifth, it harms the

It is striking, after all, that most of the harms allegedly flowing directly or indirectly to Kentucky’s sister States and their citizens have failed to dissuade even a single State from supporting the current system

unsuitability of the judicial process and judicial forums for making whatever predictions and reaching whatever answers are possible at all

congressional forum has two advantages. Congress

the case is readily resolved by last Term’s decision in United Haulers

I will apply our negative Commerce Clause doctrine only when stare decisis compels me to do so

it would be no small leap from invalidating state discrimination in favor of private entities to invalidating state discrimination in favor of the State’s own subdivisions performing a traditional governmental function

I would entirely “discard the Court’s negative Commerce Clause jurisprudence.”

Eighteenth-century thinkers, even those most prescient, could not foresee our technological and economic interdependence.

The national, free market within our borders has been a singular force in shaping the consciousness and creating the reality that we are one in purpose and destiny

The explicit, local discrimination the Court ratifies today likely will result in extra, though manageable, accommodation costs

This is but a reformulation of the phrase “police power,” long abandoned as a mere tautology.

That a law has the police power label—as all laws do—does not exempt it from Commerce Clause analysis.

The Court holds the Kentucky law is valid because bond issuance fulfills a governmental function: raising revenue for public projects

The law in question operates on those who hold the bonds and trade them, not those who issue them.

t, the premise is wrong

It is simply not commercial or investment practice to make payment obligations turn upon either the residence of the holder or the State of the issuer.

discrimination against out-of-state commerce still would be too plain and prejudicial to be sustained

The challenged state activity is differential taxation, not bond issuance

The state tax provision at issue could be repealed tomorrow without altering or impairing a single obligation in the bonds

The tax imposed here is an explicit discrimination against out-of-state issuances for admitted protectionist purposes

f United Haulers. There the Court concluded the ordinance applied equally to interstate and in-state commerce—and so it applied without differentiation between in-state and out-of-state commerce—because the government had monopolized the waste processing industry.

Nondiscrimination, not just state involvement, was central to the rationale.

That justification cannot be invoked here, for discrimination against out-of-state bonds is the whole purpose of the law in question

a “tax exemption is not the sort of direct state involvement in the market that falls within the market-participation doctrine.” Camps Newfound

open invitation to enact these kinds of discriminatory laws—laws that, until today, the Court has not upheld

. Taxation is a quintessential act of regulation, not market participation.

The Court could say there needs to be a sui generis exception, noting that the interstate discrimination has been entrenched in many States and for a considerable time.

Instead, today the Court weakens the preventative force of the Commerce Clause and invites other protectionist laws, thus risking further dislocations and market inefficiencies