Constitutional Law

i. The Supreme Courts Authority a. The Scope of Judicial Review i. Marbury v. Madison 1. The Supreme Court decides the question of who decides .is this a political question for the executive office to decide or a question of individual rights for the Court to decide a. Individual Rights Model and Byproduct view, declaring a law unconstitutional is just a byproduct of the court deciding upon individual rights b. Ministerial decision versus Political decision 2. Court has the power of judicial review, though it only invalidates a law pertaining to the judicial branch, its power to invalidate all legislation is established over the next 200 years 3. Office of the executive is amenable to process from the judicial branch, though question of how amenable and what immunities exist still remains 4. What deference should the Court grant to the coordinate branch of government?-> this deference moves over times ii. Cooper v. Aaron 1. Seems to assert that the Supreme Courts interpretation of the Constitution is the supreme law of landjudicial exclusiveness, however in reality it only binds the parties that come before it 2. Judicial solutions to enforcement a. Fee shifting- used in Civil Rights cases, allows plaintiffs to more readily bring claims against those who violate Constitutional norms and gives defendants an incentive to follow prior Supreme Court decisions b. Qualified immunity- govt official that implements policy violating a clear constitutional norm will become personally liable for damages 3. Special function view iii. Martin v. Hunters Lessee 1. Virginia Supreme Court refuses to obey Supreme Courts decision that Martin is entitled to the land, finding that the appellate power of the Supreme Court doesnt extend to their court 2. It is not the court that hears the case that decides jurisdiction but rather the nature of the case, judicial power extends to all cases

3. Rationale a. State attachments and prejudices (clearly seen in this case where it is a Virginia grant versus a loyalist claim) b. Uniformity of decisions among states on Constitutional issues iv. Spheres of Authority 1. First touted by Jefferson, Supreme Court decisions are not binding upon the Executive within its sphere of authorityi.e. the President can pardon a person for violating a law that it thinks is unconstitutional 2. Presidential veto for unconstitutional legislation 3. Lincoln and Dred Scott- decision is only binding upon the parties to the case, President as a political matter can seek to have it overturned or trimmed back 4. FDR was the only president prepared to refuse to enforce a decision by the Supreme Court b. Jurisdiction Stripping i. Ex Parte McCardle 1. Marbury holds that Congress cannot add to the Courts original jurisdiction but there still remains the possibility that Congress can take away jurisdiction under exceptions clause of Article III 2. The law in McCardle does not affect jurisdiction that was previously exercised, simply does not allow jurisdiction on appeal from circuit court to Supreme court ii. Many proposals have been made in Congress to strip the court of jurisdiction in areas such abortion in school prayer but all have failed iii. Article III may contain internal limits that keep Congress from stripping away the Courts core functions, also external limits in the Bill of Rights and due process iv. Congress traditionally has to confer upon the courts jurisdiction through legislation even though that jurisdiction is authorized by the Constitution c. Case or Controversy requirement i. S. Ct. has consistently denied issuing advisory opinions due to Article III case or controversy requirement 1. Rationale: hard to know the far reaching consequences of such an opinion, adjudicating issues without standing would also infringe upon other areas of government (public suing Congress because they dont like a law)

ii. Standing 1. Requirements a. Injury-in-fact- one that is actual or imminent b. Causation- action of one party is causing the injury to you c. Redressability iii. Lujan v. Defenders of Wildlife 1. Two plaintiffs do not know when they will be able to go back and see the Nile Crocodile or Asian elephant which will be harmed or possibly go extinct as a result of the regulation a. Intent to go back one day to see these animals is not concrete enough to establish an injury-in-fact, more of an ideological injury 2. Congress cannot merely create a procedural injury that extends to all citizens who want to bring suit, still need Article III standing 3. Also problem with redressability, U.S. funding for these projects are only fractional so discontinuing the funding is not likely to keep harm from coming to these animals 4. Kennedy: Congress can create rights and chains of causation that might have been too tenuous before, but they have to be articulated more than this 5. Individual Rights Model iv. Massachusetts v. EPA 1. Massachusetts sues in its capacity as beach landowner, stating it has lost 10-20cm of coast 2. Though harm is widespread, that does not keep it from meeting the injury-in-fact requirement the harm must simply be individuated 3. Causation: a small incremental step in causing the overall problem is enough 4. Redressability: even a slight reduction in emissions will help in slowing climate change which meets the redressability requirement 5. Special Function Model v. Allen v. Wright 1. Granting tax-exempt status to private racially discriminatory schools did not cause the injury of her child not being able to attend a fully integrated school

2. Rationale: IRS withdrawal of tax exemption from schools might not make an appreciable difference in the amount of integration in her childs public school links in causation are too tenuous 3. Individual Rights Model vi. Prudential Standing 1. 3rd party standing a. Craig v. Boren- beer seller suing on behalf of his customers due to state law that imposes higher age limit on guys than girls i. Interchangeable economic interests b. Factors i. Relationship of parties ii. Barriers to the directly injured bringing the suit c. Prudential standing issues easily overcome by legislation 2. Taxpayer standing (generalized grievances) a. S. Ct. generally refuses to entertain taxpayer suits, refusing to resolve generalized grievances that are mainly political i. Individual Rights Model ii. Taxpayers challenging a tax imposed by a municipality might have standing b. Flast v. Cohen- the one exception to taxpayer standing, allowed tax payers to challenge grants to religious schools on Establishment Clause grounds i. Special Function model c. General Rule- no standing i. Frothingham v. Mellon- conditional grants to reduce infant mortality ii. Hein v. Freedom of Religion- executive branch faith-based initiatives (compare Flast) iii. U.S. v. Richardson- CIA keeps expenditures secret iv. Schlesinger- reserves members challenging validity of Congressmen being in reserves, no standing d. Exception i. FEC v. Akins- FEC fails to designate AIPAC as a political committee subject to requirements

1. Breyer: fact that a harm is widespread doesnt mean that is concrete, voting is one of the most essential rights given to U.S. citizens 2. Special Function model 3. Zone of Interest a. Bennett v. Spear- ESA damaged economic interests of two ranchers, govt claims that ESA zone of interests were environmental not economic i. Court finds that Congress had overcome this prudential barrier through its citizen-suit provision 4. Qui tam suit (an action brought under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.) a. Vermont Agency of Natural Resources- statute allows citizens to sue fraudulent govt contractors for personal payment i. Congress can make individuals assignees of the U.S., thus U.S. has injury in fact and assigns it to citizens 5. Legislator standing a. Raines v. Byrd- legislators do not have standing to challenging line-item veto act i. Diminished effectiveness of votes is too abstract of a claim by legislators to challenge a law-> no injury vii. Mootness and Ripeness 1. Mootness- the actual controversy must exist at all stages of review a. Exception: capable of repetition yet evading review i.e. Roe v. Wade 2. Ripeness- Courts cannot adjudicate issues that mainly rest upon the fear of future injury, must have a clear record of established facts to insure narrow and informed decision making a. i.e. executive branch employees not being able to participate in campaigns they challenge before they ever try to participate b. i.e. Army surveys lawful activity and citizens bring suit based on fear of future punitive action viii. Nonjusticiability- The Political Question Doctrine

1. Baker v. Carr- Tennessee voters bring suit based on malapportioned voting districts a. Certain situations that are appropriate for another branch to decide a political question i. Textually committed to another branch by the Constitution ii. Lack of judicially discoverable standard for settling the dispute iii. Requisite policy determination not suitable for judiciary (1 person=1 vote) iv. Cannot decide without showing disrespect to a coequal branch of govt b. Action is brought under equal protection clause, not Guaranty clause (Republican form of govt) i. Guaranty clause is always nonjusticiable due to lack of judicial standards for its application c. Dissent: one cannot speak of vote dilution until it is determined what a vote should be worth this should be a legislative determination and not a judicial one 2. Powell v. McCormack- representative uses house funds to take trips with his gf to Biminee, House refuses to seat him a. Court finds that there is a Constitutional commitment but it is limited to Congress determination of age, citizenship, and residence Decision is reviewable because Congress did not base its assessment of qualifications on those grounds 3. Nixon v. U.S.- Judge Nixon is found guilty of making false statements to a grand jury and removed from office by the Senate a. Impeachment and removal is committed solely to Congress, not reviewable by a Court b. Souter: coin-toss scenario

ii.

Separation of Powers a. Executive Violation i. Youngstown Sheet & Tube- Korean war raises the demand for steel, labor strike threatens militarys supply of steel, President uses an executive order to take over the steel industry in Pittsburgh 1. Existing Congressional statutes authorizes a process through which President can seize property for the military, but these were not used 2. Jackson categories a. Congressional authorization (strongest) b. Congressional silence (depends on situation) c. Congressional prohibition (weakest, power must be based on Constitution) 3. This situation falls under category 3, President deliberately disobeyed the process set out by Congress 4. Frankfurter concurrence: acquiescence by Congress can put a gloss on Presidents power(silence) ii. Dames & More- President nullified attachments to Iranian assets and transferred them to the Claims Tribunal where the attachments could be adjudicated 1. Nullifying and transferring claims were granted directly in the statute, suspending them in court were not 2. Can infer from the situation that Congress implicitly authorized suspension and has acquiesced in the Presidents power to take such action over the years 3. Nullifying and transferring=category 1, suspending= category 2, functional SOP approach iii. War Powers Resolution 1. Every President has contested that the War Powers Resolution conflicts with executive power, though the still use the courtesy of notifying troops before they send them overseas b. Executive Discretion during Times of War & Terror i. Emergency Consitutionalism- Constitutional says little about wartime powers other than suspension of the Writ, suppressing insurrections, and repelling invasions ii. Ex Parte Milligan- citizen of Indiana vandalizes railroads in the name of the Confederacy, but is not part of a formal rebellion 1. Citizen that is not part of a military force cannot be tried by a military tribunal as long as the civilian courts are open

iii. Ex Parte Quirin- 8 Germans are dropped off in New York and Florida by submarine to destroy war industries in the U.S., military commission is appointed, one is an American citizen (born in the U.S.) 1. Jackson category 1, President is acting according to authority granted by him in the Articles of War 2. Germans are unlawful enemy combatants, out of uniform in order to secretly destroy war industries a. Traditionally, unlawful combatants are subject to trial while lawful combatants are just held until the end of the war 3. A person can be a citizen and an enemy combatant iv. Johnson v. Eisentrager- Germans captured in Pacific and tried by military tribunal in Germany 1. Never were within the territory of the United States so the Court has no jurisdiction v. Rasul v. Bush- Guantanamo detainees petition for writ 1. Court finds that for all tense and purposes, Guantanamo is a territory of the United States 2. Quirin distinguished: contest their combatant status, not nationals of a state at war with U.S. 3. Individual Rights Model: petitioners have never had an opportunity to contest their combatant status vi. Hamdi v. Rumsfield- U.S. citizen captured in Afghanistan and held in naval brig in VA 1. Court splits 4-4 on whether AUMF authorizes detention of combatant citizen a. If President has power to kill, then he has the power to detain until war is over 2. Due process is still required for someone who disputes their enemy combatant status, executive process review and some evidence standard are not enough 3. Scalia: two options for govt, try him in criminal court for treason or let him go since Writ has not been suspended a. This is a criminal act not governed by the law of war asymmetric situations b. Habeas Corpus has a substantive element as well as procedural, vindicates due process rights and legality of detention vii. Hamdan v. Rumsfield- Hamdan tried by President appointed military commission in Guantanamo Bay 1. Plurality opinion on whether the Geneva conventions apply and whether conspiracy is a war crime

2. Majority finds that this is a Jackson category 3; President is acting contrary to the Uniform Code of Military Justice regularly constituted court is a court-martial a. Accused may be precluded from hearing sensitive evidence b. Lax evidence rules, anything of probative value is allowed 3. Geneva convention seems to apply only to civil wars, wars not of an international territory occurring within the territory of a signatory a. Prevents kangaroo civil war courts viii. Boumediene v. Bush- MCA allows Combat Status Review Tribunals to determine a detainees combatant status bars habeas review for Guantanamo detainees 1. How fair does the Suspension Clause reach? 3 factors a. The citizenship and status of the detainee and the adequacy of the process that determined his status, petitioners contest CSRTs designation of enemy combatant b. The nature of the place where apprehension and detention occurs i. Guantanamo is different from Landsberg, Germany (Eisentrager) c. Practical obstacles in resolving the prisoners entitlement to the writ 2. MCA bars habeas review, so does it provide an adequate substitute? a. Must allow the prisoner to present exculpatory evidence at the appellate level c. Congressional Violation of Separation of Powers i. Congressional control of Executive Branch 1. INS v. Chadha- one house veto over AGs decision to allow Chadha to stay in the U.S. a. Court goes around 3rd party standing issue since Chadha is asserting the rights of the executive, Chadhas interests are not barred due to SOP claim b. This is a legislative act subject to bicameralism and presentment requirement, Congress cannot legislate without those requirements i. Congress cannot also reserve executive power for itself once it enacts a bill

c. Throws Jackson categories in doubt, silence can never have the force of law since it is not subject to bicameralism and presentment d. Formalist approach 2. Clinton v. New York- line-item veto a. President is essentially amending the bill (legislating) and this is not authorized by the Constitution b. President cannot cancel certain provisions in a law, but can act within discretion that a law gives him c. Dissent: this is essentially the President using his discretion to spend up to a certain amount, not a veto ii. Congressional control over Executive Officers 1. Buckley v. Valeo- 4 out of 6 members of FEC are appointed by Congress a. FEC is an agency executing the law, not performing a legislative function therefore board members are officers of the United States b. Congress has no role in appointing officers of the U.S., only power is Senate in confirming 2. Bowsher v. Synar- Comptroller General given authority by legislation to reconcile conflicting budgets between OMB and CBO, had to exercise independent judgment in reconciliation then recommended it to President who had to follow it a. Executive officers are only removable by Congress through impeachment, not joint resolutions b. Act gives executive authority to CG in interpreting and implementing the law (independent judgment not ministerial) c. Legislative officers cannot exercise executive authority formalist approach d. Dissent: functional approach, is this a real threat of encroachment or aggrandizement on the executive branch 3. Myers- Washington postmaster, President tries to remove a. Removal power of appointed officers belongs to the executive alone b. Jackson category 3: high water mark of Presidential power since he is acting directly contrary to Congress 4. Humphreys executor- Congress can restrain Presidents removal power to for cause

a. Must be a quasi-legislative or quasi-judicial function that officer performs: purely executive officers still subject to at-will removal b. Category 3 case against President 5. Weiner a. For cause removal assumed for quasi-judicial and quasilegislative officers b. Category 2 case against president 6. Morrison v. Olson- special counsel appointed by Special Division court, only subject to for cause removal by AG a. Independent counsel is an inferior officer because (ambiguous) i. Limited tenure ii. Limited jurisdiction iii. Removable by AG b. Court can appoint due to Article II powers, only can have authority incidental to appointment (defining jurisdiction) c. Removal provision is okay because it does not unduly trammel on Presidents authority i. For cause removal for AG d. Functional test ignores Humphreys, no quasi-judicial or quasi-legislative inquiry e. Scalia dissent: prosecution is a purely executive power so President must have full control over it 7. PCAOB a. Two for cause removal layers are impermissible, interferes with executive authority 8. Mistretta- sentencing guidelines to be promulgated by commission (3 of 7 have to be federal judges) a. intelligible principle- delegation okay as long as Congress gives a guiding principle b. Judges can wear two hats, just not two hats at the same time (can appoint special counsel, but cant hear evidence on case) c. Doesnt violate SOP since this a traditional area of judicial expertise iii. Executive Privileges and Immunities 1. United States v. Nixon a. Absolute immunity for the President does not exist

b. Qualified immunity- must balance the Presidents interest that he is trying to protect versus the interests of carrying out criminal law process i. Generalized interest in receiving candid opinions from advisors not enough to overcome strong interest of criminal process ii. Courts still must be sensitive towards Presidents need for effective advice 2. Nixon v. Fitzgerald a. President has absolute immunity from civil damages/ not civil injunctions b. Judicial interference with the office of the executiveinterest in money not enough to overcome c. Decision distortion and distraction concerns 3. Clintonv. Jones a. President does not have absolute immunity from damages for events that occurred before he took the office b. Consuming the resources of the executive arent a good enough reason for granting immunity need a more concrete interest c. No decision distortion just distraction concerns iv. Impeachment 1. Other high crimes and misdemeanors a. One article of impeachment for Nixon is that he willfully disobeyed subpoenas sent by Congress, Congress was unwilling to go to court to enforce the subpoenas since impeachment is in Congress realm and didnt want to cede power to courts in the impeachment process b. Interpretation of this term largely remains in Congress hands (see Nixon), can be construed to reach severe breaches of trust as well as criminal conduct d. Nation and States in the Federal System i. U.S. Term Limits- 2 theories on states authority 1. Have only the authority that they had before the Constitution, cannot reserve power that they never had a. The people are citizens of the nation first, states second 2. Have all of the authority that is not expressly delegated to the Federal government in the Constitution10th amendment a. The people have no identity in the nation outside of that with their respective states (state representatives..etc)

iii.

Commerce Clause, Necessary and Proper Clause, and Spending Clause a. Direct effects approach i. E.C. Knight- sugar refinery acquires other in-state refineries that give it 98% of U.S. production capacity 1. Manufacturing/production is a step prior to commerce, only indirectly affects commerce 2. Directness test does not factor in the extent of the burden or the inevitability of it- a pure qualitative test b. Substantial economic effects test i. Shreveport Rate Case- intrastate Texas railway routes are set lower than routes from Texas to Shreveport 1. Close and substantial relation between rates inside Texas and rates from Texas to Shreveport lead to substantial economic effect a. Texas clearly benefits at a cost to Shreveport 2. Focuses on extent of the burden Quantitative c. Stream of commerce approach i. Swift & Co. collusion among meat dealers in Chicago 1. Sales at stockyards found to be one step within a continuous stream of commerce distinguishes from manufacturing cases 2. Now defunct d. Commerce Power and New Deal i. Railroad Retirement Board- retirement and pension plan for railroad workers 1. Congress lacks power since the regulations are solely related to the welfare of the worker and remote from any regulation of commerce 2. Akin to directness test ii. Schecter Poultry Corp- regulation that regulated hours and wages at a slaughterhouse that sold to only local retailers 1. Court rejects argument that wages and hours substantially affect chicken prices as too tenuous could lead to the govt regulating everything 2. Pre- accumulation principle iii. Carter v. Carter Coal Co.- regulation of maximum hours and minimum wages at coal mines

1. Revives directness test once again; Not the extent of the burden put on commerce but what is the relation between the activity the effect on commerce (qualitative test) 2. Purely local activities that may have a large effect on commerce may not be regulated if that effect is only indirect e. Post New Deal Commerce Power i. Jones & Laughlin- steel manufacturer in Pennsylvania discriminates against unionized employees, NLRB tries to step in 1. New test: the effect upon commerce, not the source of the injury which is the criterion (quantitative standard) a. Extent and effect of the burden matters not nature of the burden 2. industrial war substantially affects interstate commerce ii. Darby- local lumber manufacturer in Georgia, Fair Labor Standards Board sought to regulate hours and wages 1. Congress has the power to ban goods in interstate commerce that it thinks may injurious to health or welfare bootstrap 2. Congress also has the power to regulate the conditions that lead to those injuries in health and welfare through interstate commerce, nip it in the bud super bootstrap a. Unfair competition is so related and so affects interstate commerce that the conditions that create that unfair competition can be regulated themselves 3. Commerce power is plenary, doesnt matter if there is a pretext as long as regulation doesnt infringe upon some Constitutional prohibition iii. Wickard- wheat farmer grows more than his quota and uses it to feed livestock and his family 1. Aggregation principle- if many others similarly situated take the same action, would there be a substantial effect upon commerce? (does not matter if only local) 2. Supply side- if many others grew too much wheat, supply would increase and prices go down 3. Demand side- if many others grew their own wheat instead of buying it in the market, demand would decrease and prices go down iv. Heart of Atlanta Motel- hotel continues to implement policy of not renting out rooms to blacks in spite of Civil Rights Act 1. Discrimination in hotels, which leads to blacks having to travel long distances and go through much trouble to find accommodations, substantially affects commerce

2. Plenary power- doesnt matter that the obstruction to interstate commerce is also a social wrong v. Katzenback v. McClung (Ollies Barbecue)- restaurant that doesnt seat blacks 1. Rational basis test- Congress only needs a rational basis for thinking the object of regulation affects commerce 2. Substantial affect due to less spending by blacks in interstate commerce f. Modern Revival of Limits on Commerce Power i. U.S. v. Lopez- Gun Free School Zones Act 1. Distinguishing prior cases; all involved some kind of economic activity, not criminal activity 2. Noneconomic activity cannot use the aggregation principle (augmented by Morrison) 3. Nexus requirement could require a case by case determination of whether possession affects commerce but that is absent 4. Also no Congressional findings which arent dispositive but can be helpful ii. United States v. Morrison- civil remedies for gender motivated violence 1. Court rejects Congress findings on how gender motivated violence affects interstate commerce lack of rational basis test 2. No categorical rule against not aggregating noneconomic activity backs off of Lopez iii. Gonzales v. Raich- U.S. law bans self-grown medical marijuana 1. Same rationale as Wickard, this is a local activity that is part of an economic class of activities 2. Aggregation principle applies here, not regulating would substantially affect the supply and demand of illicit marijuana on the interstate market 3. Resurrects the rational basis test 4. This part of the law also part of a larger regulation of the interstate market for marijuana 5. Scalia: Congress authority comes from Necessary and Proper clause, not directly from commerce clause when Congress finds it necessary to regulate a purely local activity in order to regulate a larger interstate market then they may do so under N&P g. Necessary and Proper Clause i. Comstock- power for federal judges to confine mentally ill prisoners after they are supposed to be released

1. Criminalizing conduct and confining prisoners has long been a power exercised by Congress, this is a sufficient link to their enumerated powers to fall under N & P clause 2. Kennedy: minimum rationality test not applicable to N & P and Commerce clauses, needs a stronger rational basis test with a demonstrated link in-fact h. External Limits: State Autonomy and the 10th Amendment i. United States v. California- state owned railroad can be regulated by Federal Govt 1. State powers are necessarily diminished to the extent power is granted to the federal govt in the Constitution ii. New York v. U.S.- federal tax on mineral water sold by state 1. Federal government can lobby indiscriminate taxes that happen to fall upon states as well as private citizens as long they dont unduly interfere with that states sovereign functions iii. National League of Cities- FLSA as applied to state employees 1. 10th amendment acts as an external limit on Commerce Clause a. Source of authority? Yes, in Commerce Clause b. Limit on authority? Yes, 10th amendment 2. Test: is the object of regulation a traditional and integral government function? If yes, state is exempt 3. Imputes independent analytical force into the 10th amendment iv. Garcia v. San Antionio Metro Transit- FSLA and metro authority 1. Rejects approach in National League of Cities a. Source of Authority? Yes, Commerce Clause b. Limit on Authority? No, source of authority has already answered this question 2. Integral and traditional government function is too tough to apply 3. Preservation of state interests must come through the political process, defects in political process might lead to judicial intervention v. South Carolina v. Baker- exemption to federal taxes on SC bearer bonds 1. No failure in political process occurred SC was not deprived of its right to participate in the national political process vi. New York v. United States- states had to either provide for disposal of low level radioactive waste within their borders or take title to it 1. Mirror image rule (when law just applies to states) a. If there is a limit on authority (10th amendment) then there can be no source of authority

2. Anti-commandeering principle a. Congress can either i. Attach conditions to the receipt of federal funds ii. Give states a choice of regulating themselves or having it preempted by federal law b. Cannot compel legislation th amendment has independent analytical force in that it 3. 10 informs the source of authority analysis vii. Printz v. U.S.- local law enforcement officers have to do background checks on gun buyers 1. Anti-commandeering principle a. Cannot force state executive officials to implement federal law 2. Accountability rationale: state citizens wont know whether to hold state or federal officials accountable 3. Is commandeering state officers Necessary and Proper for implementing federal law might be necessary but not proper 4. SOP violation: Congress cannot circumvent the President by forcing state officials to execute the law viii. Reno v. Condon- federal law limiting DMVs use of private data 1. Congress can pass laws that regulate states as long as they dont require them to legislate or regulate private activities ix. South Dakota v. Dole- 5% withheld of highway moneys if minimum age not set to 21 1. 5 conditions for federal money a. Must be for general welfare b. Condition must be ambiguous c. Must relate to the federal interest in particular national programs d. Must not induce states into unconstitutional activities e. Must not be so coercive as to the point where pressure turns into compulsion 2. Highly deferential nexus requirement a. Safe interstate travel and drunk driving of young people was close enough related to meet the requirement

iv.

Dormant Commerce Clause a. Discrimination i. Facial Discrimination 1. Philadelphia v. New Jersey- New Jersey bans out of state trash a. A state must pursue its objectives through neutral nondiscriminatory means i. Health argument- Philadelphias trash is no more harmful than New Jerseys ii. Is there some reason, other than originating from outside of the state, to treat the article differently? b. If the very movement through the state would cause harm, then this would be treated differently 2. Maine v. Taylor- bans out of state baitfish due to ecological concerns a. The one outlier to facial discrimination b. Must show that the objective cannot be accomplished by any other nondiscriminatory means 3. Hughes v. Oklahoma- bans minnows from being transported out of the state a. Abandons idea that state owns the wild animals within its borders b. Not a last ditch attempt after other alternatives prove to not be feasible (dealers inside Oklahoma have no limits to what they can sein) 4. Chemical Waste Management v. Hunt a. Cant impose taxes on out of state waste 5. Oregon Waste Systems- imposes higher surcharge on out of state waste a. Facially discriminatory laws subject to a per se rule of invalidity b. Not allowed unless it fairly compensates for costs imposed by out of state waste 6. West Lynn Creamery- all milk sales are taxed but Massachusetts retailers received a full rebate of the tax

a. Fund specific subsidies are discriminatory (essentially an out of state tax) and thus invalid under dormant commerce clause b. General subsidies are okay though because in state competition does exist, i.e. teachers versus milk producers 7. Camps Newfound/Owatonna- a tax exemption for charitable organizations that provide their services in state a. Court finds that this tax exemption is discriminatory in acting as a tariff to out of state charities and is invalid ii. Home Processing Requirements 1. Dean Milk- Madison law requires milk to be processed and pasteurized within 5 miles at one of the local plants a. Irrelevant that law applies to in state entities as well as out of state entities still must ask if a barrier exists b. Cannot enact such a discriminatory law unless there are no other alternatives to reach the same goal i. Madison could just inspect the milk as it enters the state would not be a barrier c. Burden of establishing discrimination is on plaintiff, plaintiff will also probably introduce evidence of alternatives though this burden is really the defendants 2. C&A Carbone- town decides to finance its waste facility by passing a flow control ordinance, all trash within the city must go to this facility a. Creating a monopoly that discriminates against in state interests as well as out of state interests is still invalid i. Bars import of out of state garbage disposal services, also bars other local competition but its the analysis from the out of state interest that matters iii. Government Service Exception 1. United Haulers- flow control ordinance to a waste facility that is state owned a. When the government is providing the service, it is likely to be for the public welfare and less likely to be about protecting local interests b. In being for the public good, these laws that favor governments are not discriminatory c. Test: Is this a traditional government function

i. Example: school zoning, a city can require kids in that city to attend their school and not allow kids from other cities to attend 2. Department of Revenue v. Davis- tax exemption for public bonds in Kentucky but not for other states a. Cites United Haulers, government is more likely to be for public welfare than for discrimination purposes b. Issuance of public debt to fund public projects is quintessential government function iv. Discriminatory Purpose or Effect