Reading Assignments for Sixth Topic: the Dormant Commerce Clause

First assignment:

1. Martin Redish and Shane Nugent, “The Dormant Commerce Clause and the Constitutional Balance of Federalism,” 1987 Duke Law Journal 569-581 (1987). Please read the introduction and the first part of the article, pages 569 to 581.

2. Willson v. Black-bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 250-252, 7 L.Ed. 412 (1829). State law permitting the damming of a navigable creek.

3. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 315-321, 13 L.Ed. 996 (1851). Excerpt. State law requiring ships to use a local pilot.

Second Assignment:

4. Pike v. Bruce Church Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Excerpt. Much cited statement of the general rule.

5. Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997). Excerpts from Justice Scalia’s and Justice Thomas’s dissents.

Discussion Questions:

1. If the Dormant Commerce Clause doctrine did not exist, as suggested by Redish and Nugent in their article and by Justice Thomas in several dissents, what would be the consequences for the American economy? Would there be more state regulatory laws? Would Congress move to regulate more aspects of the national economy in order to preempt state regulations? Would business suffer from more or less regulation?

2. If Chief Justice Marshall had been able (it appears that he was willing) to adopt the nationalist exclusivity argument in the Gibbons opinion—the rule that the power to regulate foreign and interstate commerce is exclusively federal, and that any state regulation of such commerce was unconstitutional—where do you think the line between interstate and intrastate commerce should be drawn? Would the evolution of the Nineteenth Century agricultural economy of the United States to the Twentieth and Twenty-first Century industrial and post-industrial economy have required the Court to move that line over time?

3. Given the rule of “selective exclusivity” in the Cooley opinion, what commercial activities of the Twenty-first Century should be considered national in scope and therefore within the proper scope of federal regulation, and what activities should be considered local in scope and thus within the scope of state regulation?

4. What about regulation of the internet, which is clearly international and interstate commerce; should the states have constitutional authority to regulate any aspect of internet content or internet sales in the absence of federal regulation? A number of states have attempted such regulation. See, for example, Marycle, LLC v. First Choice Internet, Inc., 166 Md. App. 481, 890 A.2d 818 (2006).

Related Cases and Recommended Readings

1. Justice Johnson's Concurring Opinion in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 222 (1824). A rationale for exclusive federal power to regulate commerce.

2. Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 436-449, 6 L.Ed. 678 (1827). A state taxation law struck down by Marshall in his second Commerce Clause opinion.

3. Mayor, Aldermen and Commonalty of New York v. Miln, 36 U.S. (11 Pet.) 102, 9 L.Ed. 648 (1837). State law requiring shipmasters arriving in port to provide passenger information to city authorities.

4.Thurlow v. Massachusetts (The License Cases), 46 U.S. (5 How.) 504, 12 L.Ed. 256 (1847). State law requiring license for those selling imported liquor.

5. Smith v. Turner (The Passenger Cases), 48 U.S. 283, 12 L.Ed. 702 (1849). State tax on alien passengers arriving in port.

6. South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 180-196, 58 S.Ct. 510, 82 L.Ed. 734 (1938). State truck size and weight regulations.

7. Southern Pacific Co. v. Arizona, 325 U.S. 761, 763-784, 784-795 (Black, dissenting). 795-6 (Douglas, dissenting), 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). State train-length regulations.

8. Freeman v. Hewit, 329 U.S. 329, 67 S.Ct. 274, 91 L.Ed. 265, 252 (1946). State income tax.

9. Hughes v. Alexandria Scrap, 426 U.S. 794, 796-810 (Intro, Part I, and Part II of Powell's opinion), 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). Junk autos; market regulator/participant case.

10. Reeves v. Stake, 447 U.S. 429, 430-447 (opinion), 447-454 (Powell's dissent), 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980). Cement; market regulator/participant case.

11. James Madison, Federalist Paper #42. Excerpt. On the weakness of Congress under the Articles of Confederation to regulate internal commerce.

Some Additional Truck Cases:

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959). Mud-flaps.

Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978). Truck length.

Kassel v. Consolidated Freightlines, 450 U.S. 662, 664-679, 679-687 (Brennan, concurring in the judgment), 687-706 (Rehnquist, dissenting), 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981). Truck length.

American Trucking Association v. Michigan P.S.Commission, 545 U.S. 429, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005). Trucks, intrastate hauling fee.

Some Milk Cases:

Baldwin v. G.A.F. Seelig, 294 U.S. 511, 518-528, 55 S.Ct. 497, 79 L.Ed. 1032 (1935). Milk.

Hood v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865(1949). Milk.

Dean Milk Co. v. City of Madison, 340 U.S. 349, 350-357, 357-361 (Black, dissenting), 71 S.Ct. 295, 95 L.Ed. 329 (1951). Milk.

Great Atlantic and Pacific Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976). Milk.

Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 458-461 (Intro and Part I), 470-474 (Part III), 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). Milk containers.