no_tag - Kevin Bradberry on Diigo

29 Nov 08

Result

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it failed to use crucial search terms or search the computers belonging to the individuals

19 Nov 08

LII: Constitution

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The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

LII: Constitution

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

LII: Constitution

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The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

13 Nov 08

Rowe v. New Hampshire Motor Transport Assn., 552 U.S. 06457 (2008)

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whether a federal statute that prohibits States from enacting any law “related to” a motor carrier “price, route, or service” pre-empts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the State.
In order to “ensure that the States would not undo federal deregulation with regulation of their own,” that Act “included a pre-emption provision” that said “no State … shall enact or enforce any law … relating to rates, routes, or services of any air carrier.”
18 more annotations...
- 1994, Congress similarly sought to pre-empt state trucking regulation.
- “[A] State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”
- The first section forbids anyone other than a Maine-licensed tobacco retailer to accept an order for delivery of tobacco.
- the retailer must “utilize a delivery service” that provides a special kind of recipient-verification service
- The second section forbids any person “knowingly” to “transport” a “tobacco product” to “a person” in Maine unless either the sender or the receiver has a Maine license.
- The District Court held (among other things) that federal law pre-empts the portions of the two sections we have described, namely the “recipient-verification” provision (§1555–C(3)(C)) and the “deemed to know” provision (
- On appeal, the Court of Appeals for the First Circuit agreed that federal law pre-empted the two provisions.
- “when judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well.”
- In Morales,the Court determined: (1) that “[s]tate enforcement actions having a connection with, or reference to”carrier “ ‘rates, routes, or services’ are pre-empted,” 504 U. S., at 384 (emphasis added); (2) that such pre-emption may occur even if a state law’s effect on rates, routes or services “is only indirect,” id., at 386 (internal quotation marks omitted); (3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation, id., at 386–387 (emphasis deleted); and (4) that pre-emption occurs at least where state laws have a “significant impact” related to Congress’ deregulatory and pre-emption-related objectives,
- Morales held that, given these principles, federal law pre-empts States from enforcing their consumer-fraud statutes against deceptive airline-fare advertisements
- Morales said that federal law might not pre-empt state laws that affect fares in only a “tenuous, remote, or peripheral … manner,”
- At the same time, the provision has a “significant” and adverse “impact” in respect to the federal Act’s ability to achieve its pre-emption-related objectives.
- We concede that the regulation here is less “direct” than it might be, for it tells shippers what to choose rather than carriers what to do. Nonetheless, the effect of the regulation is that carriers will have to offer tobacco delivery services that differ significantly from those that, in the absence of the regulation, the market might dictate.
- Maine replies that the regulation will impose no significant additional costs upon carriers. But even were that so (and the carriers deny it), Maine’s reply is off the mark.
- Maine’s primary arguments focus upon the reason why it has enacted the provisions in question.
- espite the importance of the public health objective, we cannot agree with Maine that the federal law creates an exception on that basis, exempting state laws that it would otherwise pre-empt.
- The legislative history, however, does not suggest Congress made a firm judgment about, or even focused upon, the issue now before us. And the Synar Amendment nowhere mentions the particular state enforcement method here at issue; indeed, it does not mention specific state enforcement methods at all.
- In this case, the state law is not general, it does not affect truckers solely in their capacity as members of the general public, the impact is significant, and the connection with trucking is not tenuous, remote, or peripheral.

Pacific Gas and Elec. Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983)

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whether provisions in the 1976 amendments to California's Warren-Alquist Act, Cal.Pub.Res.Code §§ 25524.1(b) and 25524.2 (West 1977), which condition the construction of nuclear plants on findings by the State Energy Resources Conservation and Development Commission that adequate storage facilities and means of disposal are available for nuclear waste, are preempted by the Atomic Energy Act of 1954,
Government studies indicate that a number of reactors could be forced to shut down in the near future due to the inability to store spent fuel.
26 more annotations...
- There are both safety and economic aspects to the nuclear waste issue: first, if not properly stored, nuclear wastes might leak and endanger both the environment and human health;5 second, the lack of a long-term disposal option increases the risk that the insufficiency of interim storage space for spent fuel will lead to reactor-shutdowns, rendering nuclear energy an unpredictable and uneconomical adventure.
- District Court
- the two provisions are void because they are preempted by and in conflict with the Atomic Energy Act.
- Both of these factors counsel in favor of finding the challenge to the waste disposal regulations in § 25524.2 ripe for adjudication.
- postponement of decision would likely work substantial hardship on the utilities.
- "One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough."
- because "we cannot know whether the Energy Commission will ever find a nuclear plant's storage capacity to be inadequate," judicial consideration of this provision should await further developments
- Absent explicit preemptive language, Congress' intent to supercede state law altogether may be found from a "scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it," "because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or because "the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose."
- "compliance with both federal and state regulations is a physical impossibility,
- state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
- First, they submit that the statute—because it regulates construction of nuclear plants and because it is allegedly predicated on safety concerns—ignores the division between federal and state authority created by the Atomic Energy Act, and falls within the field that the federal government has preserved for its own exclusive control. Second, the statute, and the judgments that underlie it, conflict with decisions concerning the nuclear waste disposal issue made by Congress and the Nuclear Regulatory Commission. Third, the California statute frustrates the federal goal of developing nuclear technology as a source of energy. We consider each of these contentions in turn.
- The Commission, however, was not given authority over the generation of electricity itself, or over the economic question whether a particular plant should be built.
- "Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission . . ."
- we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant. It would clearly be impermissible for California to attempt to do so, for such regulation, even if enacted out of non-safety concerns, would nevertheless directly conflict with the NRC's exclusive authority over plant construction and operation.
- the federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.25
- The Committee explained that the lack of a federally approved method of waste disposal created a "clog" in the nuclear fuel cycle.
- we accept California's avowed economic purpose as the rationale for enacting § 25524.2. Accordingly, the statute lies outside the occupied field of nuclear safety regulation.
- Nor has California sought through § 25524.2 to impose its own standards on nuclear waste disposal.
- we do not find § 25524.2 preempted any more by the NRC's obligations in the waste disposal field than by its licensing power over the plants themselves.
- it is certainly possible to interpret the Act as directed at solving the nuclear waste disposal problem for existing reactors without necessarily encouraging or requiring that future plant construction be undertaken.
- Finally, it is strongly contended that § 25524.2 frustrates the Atomic Energy Act's purpose to develop the commercial use of nuclear power.
- There is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power. The Act itself states that it is a program "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public."
- The Court of Appeals' suggestion that legislation since 1974 has indicated a "change in congressional outlook" is unconvincing.
- The evident desire of Congress to prevent safety from being compromised by promotional concerns does not translate into an abandonment of the objective of promoting nuclear power.
- Congress has allowed the States to determine—as a matter of economics—whether a nuclear plant vis-a-vis a fossil fuel plant should be built.
- Therefore, while the argument of petitioners and the United States has considerable force, the legal reality remains that Congress has left sufficient authority in the states to allow the development of nuclear power to be slowed or even stopped for economic reasons.

11 Nov 08

LII: Constitution

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The executive power shall be vested in a President
the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

10 Nov 08

White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983)

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n 1979 the mayor of Boston, Massachusetts, issued an executive order1 which required that all construction projects funded in whole or in part by city funds, or funds which the city had the authority to administer, should be performed by a work force consisting of at least half bona fide residents of Boston.2
We granted certiorari to decide whether the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, prevents the city from giving effect to the mayor's order. 455 U.S. 919, 102 S.Ct. 1273, 71 L.Ed.2d 458 (1982). We now conclude that it does not and reverse.
2 more annotations...
- [n]othing in the purpose animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others." Id., at 810, 96 S.Ct., at 2498 (footnotes omitted). Because Maryland was participating in the market, rather than acting as a market regulator, we concluded that the Commerce Clause was not "intended to require independent justification,"
- when a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause.

United Building and Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984)

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A municipal ordinance of the city of Camden, New Jersey requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents.
The Supreme Court of New Jersey rejected appellant's privileges and immunities attack on the ground that the ordinance discriminates on the basis of municipal, not state, residency.
35 more annotations...
- the court held that the resident quota was not subject to challenge under the Commerce Clause because the State was acting as a market participant rather than as a market regulator.
- also held that the quota did not violate the Privileges and Immunities Clause because it was not aimed primarily at out-of-state residents.
- First, the Court decided White v. Massachusetts Council of Const. Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), which held that an executive order of the Mayor of Boston, requiring that at least 50% of all jobs on construction projects funded in whole or part by city funds be filled by bona fide city residents, was immune from scrutiny under the Commerce Clause because Boston was acting as a market participant rather than as a market regulator. In light of the decision in White, appellant has abandoned its Commerce Clause challenge to the Camden ordinance.
- The one-year residency requirement was deleted, thereby mooting appellant's equal protection challenge based on that durational requirement. Now, a resident of the city of Camden is defined simply as "any person who resides in the City of Camden."
- It now applies to any construction project "which is funded in whole or in part with City funds or funds which the City expends or administers in accordance with the terms of a grant."
- the 40% resident hiring requirement was changed from a strict "quota" to a "goal" with which developers and contractors must make "every good faith effort" to comply
- The fact that the ordinance in question is a municipal, rather than a state, law does not somehow place it outside the scope of the Privileges and Immunities Clause. First of all, one cannot easily distinguish municipal from state action in this case: the municipal ordinance would not have gone into effect without express approval by the State Treasurer
- a municipality is merely a political subdivision of the State from which its authority derives. City of Trenton v. New Jersey, 262 U.S. 182, 187, 43 S.Ct. 534, 536, 67 L.Ed. 937 (1923). It is as true of the Privileges and Immunities Clause as of the Equal Protection Clause that what would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority from the State.
- even if the ordinance had been adopted solely by Camden, and not pursuant to a state program or with state approval, the hiring preference would still have to comport with the Privileges and Immunities Clause.
- 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, so far as the advantages resulting from citizenship in those States are concerned."
- We cannot accept this argument. We have never read the Clause so literally as to apply it only to distinctions based on state citizenship.
- It is true that New Jersey citizens not residing in Camden will be affected by the ordinance as well as out-of-state citizens.
- We 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
- As an initial matter, the court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause.
- we must determine 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."
- We have held that there is no fundamental right to government employment for purposes of the Equal Protection Clause.
- And in White, 103 S.Ct., at 1046, n. 7, we held that for purposes of the Commerce Clause everyone employed on a city public works project is, "in a substantial if informal sense, 'working for the city.' "
- But 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.
- When the State acts solely as a market participant, no conflict between state regulation and federal regulatory authority can arise.
- The Privileges and Immunities Clause, on the other hand, imposes a direct restraint on state action in the interests of interstate harmony.
- It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce.
- In sum, Camden may, without fear of violating the Commerce Clause, pressure private employers engaged in public works projects funded in whole or in part by the city to hire city residents.
- A determination of whether a privilege is "fundamental" for purposes of that Clause does not depend on whether the employees of private contractors and subcontractors engaged in public works projects can or cannot be said to be "working for the city."
- We have stressed in prior cases that "[l]ike many other constitutional provisions, the privileges and immunities clause is not an absolute."
- It does not preclude discrimination against citizens of other States where there is a "substantial reason" for the difference in treatment.
- As part of any justification offered for the discriminatory law, nonresidents must somehow be shown to "constitute a peculiar source of the evil at which the statute is aimed."
- esident hiring preference is designed, the city contends, to increase the number of employed persons living in Camden and to arrest the "middle class flight" currently plaguing the city.
- Camden contends that the scope of the discrimination practiced in the ordinance, with its municipal residency requirement, is carefully tailored to alleviate this evil without unreasonably harming nonresidents, who still have access to 60% of the available positions.
- Reversed and Remanded.
- ustice BLACKMUN, dissenting.
- 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, simply because discrimination on the basis of municipal residence disadvantages citizens of other States "ipso facto."
- It observed that the statute "does not simply make distinctions between native-born Alaskans and those who migrate to Alaska from other States;" instead, it "also discriminates among long-time residents and even native-born residents."
- rather, it discriminated among state residents in a way that disadvantaged nonresidents as well but did not thereby implicate the underlying concerns of the Privileges and Immunities Clause. The Camden ordinance presently before the Court occupies precisely the same position.
- As a practical matter, therefore, the scope of the Clause may be measured by asking whether failure to link the interests of those who are disadvantaged with the interests of those who are preferred will consign the former group to "the uncertain remedies afforded by diplomatic processes and official retaliation."
- discrimination on the basis of municipal residence simply does not consign residents of other States, in the words of Toomer, supra, to "the uncertain remedies afforded by diplomatic processes and official retaliation." The Court thus has applied the Privileges and Immunities Clause without regard for the political ills that it was designed to cure.

09 Nov 08

Find Result

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Early experience with the Federal Amendments is encouraging. Attorneys and their corporate clients are reportedly “getting it.” Magistrate Judges on the firing line in the federal system report that parties are better prepared for “meet and confers” and that, contrary to the fears expressed by some, [FN25] corporate entities are meeting their disclosure requirements.

06 Nov 08

Granholm v. Heald, 544 U.S. 460 (2005)

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These consolidated cases present challenges to state laws regulating the sale of wine from out-of-state wineries to consumers in Michigan and New York.
to allow in-state wineries to sell wine directly to consumers in that State but to prohibit out-of-state wineries from doing so, or, at the least, to make direct sales impractical from an economic standpoint.
32 more annotations...
- the object and design of the Michigan and New York statutes is to grant in-state wineries a competitive advantage over wineries located beyond the States' borders.
- We hold that the laws in both States discriminate against interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3, and that the discrimination is neither authorized nor permitted by the Twenty-first Amendment.
- The differential treatment between in-state and out-of-state wineries constitutes explicit discrimination against interstate commerce.
- state laws violate the Commerce Clause if they mandate "differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter."
- States may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses.
- States should not be compelled to negotiate with each other regarding favored or disfavored status for their own citizens
- Michigan allows in-state wineries to ship directly to consumers, subject only to a licensing requirement.
- Out-of-state wineries, whether licensed or not, face a complete ban on direct shipment.
- differential treatment requires all out-of-state wine, but not all in-state wine, to pass through an in-state wholesaler and retailer before reaching consumers.
- Out-of-state wineries are instead required to establish a distribution operation in New York in order to gain the privilege of direct shipment.
- It comes as no surprise that not a single out-of-state winery has availed itself of New York's direct-shipping privilege.
- "viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere."
- State laws that discriminate against interstate commerce face "a virtually per se rule of invalidity." Philadelphia v. New Jersey,
- "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
- This Court upheld state laws banning the production and sale of alcoholic beverages, Mugler v. Kansas, 123 U.S. 623 (1887), but was less solicitous of laws aimed at imports.
- First, the Court held that the Commerce Clause prevented States from discriminating against imported liquor.
- Second, the Court held that the Commerce Clause prevented States from passing facially neutral laws that placed an impermissible burden on interstate commerce.
- The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.
- First, the Court has held that state laws that violate other provisions of the Constitution are not saved by the Twenty-first Amendment.
- Second, the Court has held that § 2 does not abrogate Congress' Commerce Clause powers with regard to liquor.
- Finally, and most relevant to the issue at hand, the Court has held that state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause.
- "The central purpose of the [Amendment] was not to empower States to favor local liquor industries by erecting barriers to competition."
- A retreat from Bacchus would also undermine Brown-Forman and Healy. These cases invalidated state liquor regulations under the Commerce Clause.
- Twenty-first Amendment does not end the inquiry. We still must consider whether either state regime "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives."
- keeping alcohol out of the hands of minors and facilitating tax collection.
- The States' tax-collection justification is also insufficient.
- In summary, the States provide little concrete evidence for the sweeping assertion that they cannot police direct shipments by out-of-state wineries.
- cases demand more than mere speculation to support discrimination against out-of-state goods. The "burden is on the State to show that `the discrimination is demonstrably justified,'"
- If Congress may nevertheless authorize the States to enact such laws, surely the people may do so through the process of amending our Constitution.
- But ever since the adoption of the Eighteenth Amendment and the Twenty-first Amendment, our Constitution has placed commerce in alcoholic beverages in a special category.
- Today's decision may represent sound economic policy and may be consistent with the policy choices of the contemporaries of Adam Smith who drafted our original Constitution;4 it is not, however, consistent with the policy choices made b
- The Webb-Kenyon Act and the Twenty-first Amendment cut off this intrusive review, as their text and history make clear and as this Court's early cases on the Twenty-first Amendment recognized.

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)

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the court issued a permanent injunction upon the ground that the challenged order constituted an unlawful burden upon interstate commerce. This appeal followed. 2
The appellee company has for many years been engaged in the business of growing, harvesting, processing, and packing fruits and vegetables at numerous locations in Arizona and California for interstate shipment to markets throughout the Nation
17 more annotations...
- Because they are highly perishable, cantaloupes must upon maturity be immediately harvested, processed, packed, and shipped in order to prevent spoliage.
- In 1968, however, the appellant entered the order here in issue, 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.
- After briefing and argument, the court issued a permanent injunction, finding that 'the order complained of constitutes an unlawful burden upon interstate commerce.'
- Articles being made ready for interstate movement are not necessarily yet in interstate commerce, which, he says, begins only when the articles are delivered to the interstate shipper.
- But in any event, the decisions do not support the argument that the order in the present case does not offect interstate commerce.
- 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.
- Court has candidly undertaken a balancing approach in resolving these issues,
- but more frequently it has spoken in terms of 'direct' and 'indirect' effects and burdens.
- We are not, then, dealing here with 'state legislation in the field of safety where the propriety of local regulation has long been recognized,'6 or with an Act designed to protect consumers in Arizona from contaminated or unfit goods. Its purpose and design are simply to protect and enhance the reputation of growers within the State.
- Therefore, as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act.
- For, as the Court has said, such produce is 'not the legitimate subject of trade or commerce, nor within the protection of the commerce clause of the Constitution.'
- But application of the Act through the appellant's order to the appellee company has a far different impact, and quite a different purpose. The cantaloupes grown by the company at Parker are of exceptionally high quality. The company does not pack them in Arizona and cannot do so without making a capital expenditure of approximately $200,000.
- 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
- 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.
- If the Commerce Clause forbids a State to require work to be done within its jurisdiction to promote local employment, then surely it cannot permit a State to require a person to go into a local packing business solely for the sake of enhancing the reputation of other producers within its borders.

South Central Timber v. Wunnicke, 467 U.S. 82 (1984)

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We granted certiorari in this case to review a decision of the Court of Appeals for the Ninth Circuit that held that Alaska's requirement that timber taken from state lands be processed within the State prior to export was "implicitly authorized" by Congress and therefore does not violate the Commerce Clause.
We hold that it was not authorized and reverse the judgment of the Court of Appeals.
22 more annotations...
- The stated purpose of the requirement is to "protect existing industries, provide for the establishment of new industries, derive revenue from all timber resources, and manage the State's forests on a sustained yield basis."
- The Court of Appeals for the Ninth Circuit reversed, finding it unnecessary to reach the question whether, standing alone, the requirement would violate the Commerce Clause, because it found implicit congressional authorization in the federal policy of imposing a primary-manufacture requirement on timber taken from federal land in Alaska.
- a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear.
- "when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state."
- On the other hand, when Congress acts, all segments of the country are represented, and there is significantly less danger that one State will be in a position to exploit others.
- The fact that the state policy in this case appears to be consistent with federal policy—or even that state policy furthers the goals we might believe that Congress had in mind—is an insufficient indicium of congressional intent.
- if a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities.
- "[n]othing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others."
- the Court recognized the principle that the Commerce Clause places no limitations on a State's refusal to deal with particular parties when it is participating in the interstate market in goods.
- The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further.
- Alaska contends that it is participating in the processed timber market, although it acknowledges that it participates in no way in the actual processing.
- although the State may be a participant in the timber market, it is using its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant.
- There are sound reasons for distinguishing between a State's preferring its own residents in the initial disposition of goods when it is a market participant and a State's attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands. First, simply as a matter of intuition a state market participant has a greater interest as a "private trader" in the immediate transaction than it has in what its purchaser does with the goods after the State no longer has an interest in them.
- We reject the contention that a State's action as a market regulator may be upheld against Commerce Clause challenge on the ground that the State could achieve the same end as a market participant.
- Second, downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction.
- the State is attempting to govern the private, separate economic relationships of its trading partners; that is, it restricts the post-purchase activity of the purchaser, rather than merely the purchasing activity
- the State may not avail itself of the market-participant doctrine to immunize its downstream regulation of the timber-processing market in which it is not a participant.
- Finally, the State argues that even if we find that Congress did not authorize the processing restriction, and even if we conclude that its actions do not qualify for the market-participant exception, the restriction does not substantially burden interstate or foreign commerce under ordinary Commerce Clause principles.
- "[T]he 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. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal.
- Because of the protectionist nature of Alaska's local-processing requirement and the burden on commerce resulting therefrom, we conclude that it falls within the rule of virtual per se invalidity of laws that "bloc[k] the flow of interstate commerce at a State's borders."
- foreign commerce is burdened by the restriction.
- state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny.

Dept. of Revenue of Kentucky v. Davis, 553 U.S. 06666 (2008)

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The differential tax scheme in Kentucky works the same way; the 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.
along with the new tax regimes came exemptions and deductions, see id., at 171–184, to induce all sorts of economic behavior, including lending to state and local governments at favorable rates of untaxed interest.
21 more annotations...
- 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.
- relying in part on our cases recognizing the “market-participant” exception to the dormant Commerce Clause limit on state regulation
- 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.
- The Commerce Clause empowers Congress “[t]o regulate Commerce … among the several States,” Art. I, §8, cl. 3, and although its terms do not expressly restrain “the several States” in any way, we have sensed a negative implication in the provision since the early days
- Under the resulting protocol for dormant Commerce Clause analysis, we ask whether a challenged law discriminates against interstate commerce.
- A discriminatory law is “virtually per se invalid,” ibid.; see also Philadelphia v. New Jersey,
- nd will survive only if it “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives,”
- bsent discrimination for the forbidden purpose, however, the law “will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”
- an 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.”
- “basic distinction . . . between States as market participants and States as market regulators,”
- United Haulers, supra, upheld a “flow control” ordinance requiring trash haulers to deliver solid waste to a processing plant owned and operated by a public authority in New York State. We found “[c]ompelling reasons” for “treating [the ordinance] differently from laws favoring particular private businesses over their competitors.”
- It follows a fortiori from United Haulers that Kentucky must prevail.
- 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, with the venerable history we have already sketched,
- Thus, United Haulers provides a firm basis for reversal. Just like the ordinances upheld there, Kentucky’s tax exemption favors a traditional government function without any differential treatment favoring local entities over substantially similar out-of-state interests. This type of law does “not ‘discriminate against interstate commerce’ for purposes of the dormant Commerce Clause.” Id., at ___ (slip op., at 13).
- But there is no ignoring the fact that imposing the differential tax scheme makes sense only because Kentucky is also a bond issuer.
- The Commonwealth has entered the market for debt securities,
- It simply blinks this reality to disaggregate the Commonwealth’s two roles and pretend that in exempting the income from its securities, Kentucky is independently regulating or regulating in the garden variety way that has made a State vulnerable to the dormant Commerce Clause.
- But when Kentucky exempts its bond interest, it is competing in the market for limited investment dollars,
- 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.
- Concluding that a state law does not amount to forbidden discrimination against interstate commerce is not the death knell of all dormant Commerce Clause challenges, for we generally leave the courtroom door open to plaintiffs invoking the rule in Pike, that even nondiscriminatory burdens on commerce may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice.
- Free trade in the United States, unobstructed by state and local barriers, was indispensable if we were to unite to ensure the liberty and progress of the whole Nation and its people

30 Oct 08

United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 051345 (2007)

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“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility.
Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.
27 more annotations...
- The flow control ordinances in this case benefit a clearly public facility, while treating all private companies exactly the same. Because the question is now squarely presented on the facts of the case before us, we decide that such flow control ordinances do not discriminate against interstate commerce for purposes of the dormant Commerce Clause.
- Compelling reasons justify treating these laws differently from laws favoring particular private businesses over their competitors.
- government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.
- Given these differences, it does not make sense to regard laws favoring local government and laws favoring private industry with equal skepticism.
- Laws favoring local government, by contrast, may be directed toward any number of legitimate goals unrelated to protectionism.
- Here the flow control ordinances enable the Counties to pursue particular policies with respect to the handling and treatment of waste generated in the Counties, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate.
- We should be particularly hesitant to interfere with the Counties’ efforts under the guise of the Commerce Clause because “[w]aste disposal is both typically and traditionally a local government function.”
- Finally, it bears mentioning that the most palpable harm imposed by the ordinances—more expensive trash removal—is likely to fall upon the very people who voted for the laws.
- We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce” for purposes of the dormant Commerce Clause.
- Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”
- After years of discovery, both the Magistrate Judge and the District Court could not detect any disparate impact on out-of-state as opposed to in-state businesses.
- the ordinances are more than financing tools. They increase recycling in at least two ways, conferring significant health and environmental benefits upon the citizens of the Counties.
- They are invitations to rigorously scrutinize economic legislation passed under the auspices of the police power. There was a time when this Court presumed to make such binding judgments for society, under the guise of interpreting the Due Process Clause. See Lochner v. New York,
  
  198 U. S. 45 (1905)
  . We should not seek to reclaim that ground for judicial supremacy under the banner of the dormant Commerce Clause.
- Justice Scalia, concurring in part.
- I write separately to reaffirm my view that “the so-called ‘negative’ Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.”
- Justice Thomas, concurring in the judgment.
- The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.
- As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution.
- the rule against discrimination that the Court applies to decide this case exists untethered from the written Constitution. The rule instead depends upon the policy preferences of a majority of this Court
- Many of the above-cited cases (and today’s majority and dissent) rest on the erroneous assumption that the Court must choose between economic protectionism and the free market.
- To the extent that Congress does not exercise its authority to make that choice, the Constitution does not limit the States’ power to regulate commerce.
- “The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition.
- Justice Alito, with whom Justice Stevens and Justice Kennedy join, dissenting.
- Because the provisions challenged in this case are essentially identical to the ordinance invalidated in Carbone, I respectfully dissent.
- W]e have never treated discriminatory legislation with greater deference simply because the entity favored by that legislation was a government-owned enterprise.
- Nor has this Court ever suggested that discriminatory legislation favoring a state-owned enterprise is entitled to favorable treatment.
- Respondents are doing exactly what the market-participant doctrine says they cannot: While acting as market participants by operating a fee-for-service business enterprise in an area in which there is an established interstate market, respondents are also regulating that market in a discriminatory manner and claiming that their special governmental status somehow insulates them from a dormant Commerce Clause challenge. See ibid.

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1993)

ul451.gsu.edu/...511.US.383.html - Preview

flow control ordinance, which requires all solid waste to be processed at a designated transfer station before leaving the municipality.
avowed purpose of the ordinance is to retain the processing fees charged at the transfer station to amortize the cost of the facility.
24 more annotations...
- the tipping fee of $81 per ton exceeded the disposal cost of unsorted solid waste on the private market.
- The ordinance requires all nonhazardous solid waste within the town to be deposited at the Route 303 transfer station.
- While the flow control ordinance permits recyclers like Carbone to continue receiving solid waste, § 3.C, it requires them to bring the nonrecyclable residue from that waste to the Route 303 station. It thus forbids Carbone to ship the nonrecyclable waste itself, and it requires Carbone to pay a tipping fee on trash that Carbone has already sorted.
- the federal court granted Carbone's injunction, finding a sufficient likelihood that the ordinance violated the Commerce Clause of the United States Constitution.
- The court declared the flow control ordinance constitutional and enjoined petitioners to comply with it. The federal court then dissolved its injunction.
- The court found that the ordinance did not discriminate against interstate commerce, because it "applies evenhandedly to all solid waste processed within the Town, regardless of point of origin."
- the flow control ordinance does regulate interstate commerce, despite the town's position to the contrary.
- While the immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects are interstate in reach.
- It is well settled that actions are within the domain of the Commerce Clause if they burden interstate commerce or impede its free flow.
- first, whether the ordinance discriminates against interstate commerce, Philadelphia
- second, whether the ordinance imposes a burden on interstate commerce that is "clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc.
- As we find that the ordinance discriminates against interstate commerce, we need not resort to the Pike test.
- the flow control ordinance discriminates, for it allows only the favored operator to process waste that is within the limits of the town
- The flow control ordinance has the same design and effect. It hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility.
- The flow control ordinance at issue here squelches competition in the waste-processing service altogether, leaving no room for investment from outside.
- Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Maine v. Taylor,
- States and localities may not attach restrictions to exports or imports in order to control commerce in other states.
- The flow control ordinance does serve a central purpose that a nonprotectionist regulation would not: it ensures that the town-sponsored facility will be profitable, so that the local contractor can build it and Clarkstown can buy it back at nominal cost in five years.
- JUSTICE SOUTER, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN join, dissenting.
- the exclusion worked by Clarkstown's Local Law 9 bestows no benefit on a class of local private actors, but instead directly aids the government in satisfying a traditional governmental responsibility.
- There is no indication in the record that any out-of-state trash processor has been harmed, or that the interstate movement or disposition of trash will be affected one whit.
- it does so only by subjecting Clarkstown residents and businesses to burdens far different from the burdens of local favoritism that dormant Commerce Clause jurisprudence seeks to root out.
- The town has found a way to finance a public improvement, not by transferring its cost to out-of-state economic interests, but by spreading it among the local generators of trash, an equitable result with tendencies that should not disturb the Commerce Clause and should not be disturbed by us.
- ecause the Court's decision today is neither compelled by our local processing cases nor consistent with this Court's reason for inferring a dormant or negative aspect to the Commerce Clause in the first place, I respectfully dissent.

Philadelphia v. NJ, 437 U.S. 617 (1978)

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A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . .." In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention "because of their local character and their number and diversity."
12 more annotations...
- these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself.
- incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people
- where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.
- But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach,
- "Where the statute regulates evenhandedly 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. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."
- The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited."
- Based on these findings, the court concluded that ch. 363 was designed to protect, not the State's economy, but its environment, and that its substantial benefits outweigh its "slight" burden on interstate commerce.
- Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow ofall waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination.
- In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy.
- Court's decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders.
- It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other.
- hose quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils

28 Oct 08

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)

ul451.gsu.edu/...359.US.520.94.html - Preview

We are asked in this case to hold that an Illinois statute1 requiring the use of a certain type of rear fender mudguard on trucks and trailers operated on the highways of that State conflicts with the Commerce Clause of the Constitution.
A specially constituted three-judge District Court concluded that it unduly and unreasonably burdened and obstructed interstate commerce, because it made the conventional or straight mudflap, which is legal in at least 45 States, illegal in Illinois, and because the statute, taken together with a Rule of the Arkansas Commerce Commission4 requiring straight mudflaps, rendered the use of the same motor vehicle equipment in both States impossible.
16 more annotations...
- The statute was declared to be violative of the Commerce Clause a
- These safety measures carry a strong presumption of validity when challenged in court
- Unless we can conclude on the whole record that 'the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it' (Southern Pacific Co. v. State of Arizona, supra, 325 U.S. at pages 775—776, 65 S.Ct. at page 1523) we must uphold the statute.
- The District Court found that the initial cost of installing those mudguards on all the trucks owned by the appellees ranged from $4,500 to $45,840.
- maintenance and replacement of these guards is substantial.
- Local regulation of the weight of trucks using the highways upheld in Sproles v. Binford, supra, also involved increased financial burdens for interstate carriers.
- If we had here only a question whether the cost of adjusting an interstate operation to these new local safety regulations prescribed by Illinois unduly burdened interstate commerce, we would have to sustain the law under the authority of the Sproles, Barnwell, and Maurer cases.
- The equipment in the Sproles, Barnwell, and Maurer cases could pass muster in any State, so far as the records in those cases reveal
- Thus if a trailer is to be operated in both States, mudguards would have to be interchanged, causing a significant delay in an operation where prompt movement may be of the essence
- It was also found that the Illinois statute seriously interferes with the 'interline' operations of motor carriers—
- Since carriers which operate in and through Illinois cannot compel the originating carriers to equip their trailers with contour guards, they may be forced to cease interlining with those who do not meet the Illinois requirements. Over 60 percent of the business of 5 of the 6 plaintiffs is interline traffic. For the other it constitutes 30 percent.
- Appellants did not attempt to rebut the appellees' showing that the statute in question severely burdens interstate commerce.
- They concluded that, because the Illinois statute is a reasonable exercise of the police power, a federal court is precluded from weighing the relative merits of the contour mudguard against any other kind of mudguard and must sustain the validity of the statute notwithstanding the extent of the burden it imposes on interstate commerce.
- The various exercises by the States of their police power stand, however, on an equal footing. All are entitled to the same presumption of validity when challenged under the Due Process Clause of the Fourteenth Amendment.
- This is one of those cases—few in number—where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce.
- Affirmed.

Cooley v. Board of Wardens, 53 U.S. 299 (1851)

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the objection, that it is repugnant to the third clause of the eighth section of the first article. 'The Congress shall have power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.'
he power to regulate commerce includes the regulation of navigation
15 more annotations...
- the regulation of the qualifications of pilots, of the modes and times of offering and rendering their services, of the responsibilities which shall rest upon them, of the powers they shall possess, of the compensation they may demand, and of the penalties by which their rights and duties may be enforced, do constitute regulations of navigation, and consequently of commerce, within the just meaning of this clause of the Constitution.
- a pilot, so far as respects the navigation of the vessel in that part of the voyage which is his pilotage-ground, is the temporary master charged with the safety of the vessel and cargo,
- And if Congress has power to regulate the seamen who assist the pilot in the management of the vessel, a power never denied, we can perceive no valid reason why the pilot should be beyond the reach of the same power.
- this subject of the regulation of pilots and pilotage has an intimate connection with, and an important relation to, the general subject of commerce with foreign nations and among the several states, over which it was one main object of the Constitution to create a national control.
- It becomes necessary, therefore, to consider whether this law of Pennsylvania, being a regulation of commerce, is valid.
- this act does, in effect, give the force of an act of Congress, to the then existing state laws on this subject, so long as they should continue unrepealed by the state which enacted them.
- If the states were divested of the power to legislate on this subject by the grant of the commercial power to Congress, it is plain this act could not confer upon them power thus to legislate.
- If the Constitution excluded the states from making any law regulating commerce, certainly Congress cannot re-grant, or in any manner re-convey to the states that power.
- whether the grant of the commercial power to Congress, did per se deprive the states of all power to regulate pilots.
- if it were admitted that the existence of this power in Congress, like the power of taxation, is compatible with the existence of a similar power in the states, then it would be in conformity with the contemporary exposition of the Constitution
- like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.
- The act of 1789 contains a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the states
- this act of 1789 as declares that pilots shall continue to be regulated 'by such laws as the states may respectively hereafter enact for that purpose,'
- the nature of this subject is not such as to require its exclusive legislation.
- We are of opinion that this state law was enacted by virtue of a power, residing in the state to legislate; that it is not in conflict with any law of Congress; that it does not interfere with any system which Congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action; that this law is therefore valid, and the judgment of the Supreme Court of Pennsylvania in each case must be affirmed.

27 Oct 08

Result

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The Federal Rules state that data is “not reasonably accessible” if obtaining it would result in “undue burden or cost,” and do not explicitly state whether the technical feasibility of retrieving data should be considered in determining whether certain data should be produced, although that may be implicit in the analysis of the burden and cost of production
The State Court Guideline, on the other hand, seems to focus more on the technical feasibility of retrieving the data, while also considering the cost and burden of production.
1 more annotations...
- The approaches of the Federal Rules and the State Court Guidelines to the production of metadata are fundamentally different. Although the Federal Rules do not contain a specific provision with respect to this issue, information available to the Advisory Committee that produced the Federal Rules was that hidden data is important only in very few cases. This would seem to indicate that, contrary to the current case law, the production of metadata may not be needed.

Kevin Bradberry's Library tagged no_tag → View Popular

Result

LII: Constitution

LII: Constitution

LII: Constitution

Rowe v. New Hampshire Motor Transport Assn., 552 U.S. 06457 (2008)

Pacific Gas and Elec. Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983)

LII: Constitution

White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983)

United Building and Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984)

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Granholm v. Heald, 544 U.S. 460 (2005)

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)

South Central Timber v. Wunnicke, 467 U.S. 82 (1984)

Dept. of Revenue of Kentucky v. Davis, 553 U.S. 06666 (2008)

United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 051345 (2007)

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1993)

Philadelphia v. NJ, 437 U.S. 617 (1978)

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)

Cooley v. Board of Wardens, 53 U.S. 299 (1851)

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