CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #15

4. Implied Restrictions of the Commerce Clause -- Production and Trade

A. Restricting Importation and Insulating In-State Business

• DEAN MILK CO. V. CITY OF MADISON, p. 297 (1951)
• What regulations are being challenged?
• Is there conflicting or preempting federal statutory law?
• What is the purpose of the regulation?
• Is the regulation purposefully discriminatory against interstate commerce?
• if so, can it be justified?
• Is it discriminatory in effect?
• if so, can it be justified?
• are there reasonable nondiscriminatory alternatives available to accomplish the state's purpose?
• MINNESOTA V. CLOVER LEAF CREAMERY, INC., p. 300 (1981)
• What regulation is being challenged?
• Is the regulation purposefully discriminatory against interstate commerce?
• Is it discriminatory in effect?
• Does it impose an undue burden on interstate commerce?
• what interests are balanced in this determination?
• who bears the burden of persuasion on the burden issue?
• WEST LYNN CREAMERY V. HEALY, p. 304 (1994)
• What regulation is being challenged?
• Which Commerce Clause objection prevails for Justice Stevens?
• What is Justice Scalia's objection to Justice Stevens's opinion?
• Would a simple subsidy to Massachusetts farmers out of general revenues survive Stevens's analysis?
• Would a law requiring the use of recyclable packaging survive? Should it?
• Pharmaceutical Research, p. 308 (2003): how does this case differ from the others?

B, Requiring Business Operations to be Performed in the Home State

Four state laws or local ordinances requiring a particular process to be done within the state or city; with respect to each, three questions:

(A) did the state/city have an ostensible interest that was not discriminatory toward IC?

(B) did the particular regulation have a discriminatory effect against IC?

(C) was the regulation necessary for the protection of the non-discriminatory interest?