CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #16

C. Preserving Resources for In-State Consumption

• CITY OF PHILADELPHIA V. NEW JERSEY, p. 315 (1978)
• what is the local regulation and what are its purposes?
• does it expressly treat in-state and out-of-state interests differently?
• are the landfills scarce natural resources, that the state can preserve for its own citizens?
• how does its classification relate to its legitimate purposes?
• what role does "motive" play in the court's analysis?
• MAINE V. TAYLOR, p. 324 (1986)
• What is the state regulation?
• does it facially discriminate against out-of-state interests, in favor of local ones?
• does it have a discriminatory purpose? does it have a discriminatory effect?
• does it impose a substantial burden on interstate commerce?
• how does this differ from City of Philadelphia as an embargo against out-of-state imports?
• what alternative means might have been used to protect the state's interests?
• Camps Newfound/Owatonna, Inc. v. Harrison, p. 327 (1997).
• Is not-for-profit activity outside the scope of the dormant commerce clause?
• Did the state statute facially discriminate against out-of-state interests, in favor of local ones?
• Did it have a non-discriminatory purpose?  A legitimate discriminatory purpose?
• Suppose the evidence showed that none of the burden of the property tax was passed on to the campers.  Would that change the result?  Why?

D. Preserving State-Owned Resources for In-State Use

The "Market-Participant" Doctrine

• REEVES, INC. V. STAKE, p. 331 (1980). State-owned cement plant

o is the state regulating transactions, or acting as a party to them?

o if the latter, why should it matter to the constitutionality of its action?

o are states and private enterprises really comparable when they participate in a market?

• WHITE V. MASSACHUSETTS COUNCIL OF CONSTRUCTION EMPLOYERS, p. 336 (1983). City-funded public works projects, local-resident hiring quotas

o what transactions are being regulated?

o is the city a party to those transactions, or a mere regulator?

o what is the relevance of the use of federal funds in the projects covered by the city's order?

• South-Central Timber Development v. Wunnicke, p. 338 (1984).

o What transactions are being regulated by the challenged state action?

o In the regulated transactions, is the state a buyer or seller of goods or services?

o Suppose the state had required, as a condition of the right to purchase state-owned timber, that the purchaser already have a processing facility within the state – different result?

o Suppose the federal government had approved the particular sale condition – different result?

• New Energy Co. of Indiana v. Limbach, p. 340 (1988): is a state a "market participant" when it provides a tax exemption in lieu of a direct subsidy to a particular local industry?
• Camps Newfound/Owatonna, Inc. v. Harrison, p. 348 (1997): why is this tax exemption a “poor candidate” for the market participant doctrine?