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Dormant Commerce Clause Analysis

The DCC is a mechanism used by the courts to infer from the text of the CC that the States regulated when they shouldnt. To make a DCC Challenge Plead all 3 Categories in the alternative according to Rule 8(d)(3). 1. Facially Discriminatory Statute? 2. Facially Neutral Statute with a Protectionist Effect or Purpose? 3. Undue Burden? a. Pike Balancing Test

MPE Defense for States against DCC 1 or DCC 2 Challenge Privileges and Immunities Challenge
A P&I challenge to a state law should be used in conjunction with a DCC Challenge. They mutually reinforce each other. Restraint on state efforts to bar out of staters from access to local resources. Look at Hicklin v. Orbeck. Authority from Article IV and 14th Amendment but the 14th Amendments P&I Clause is much less useful b/c its been construed very narrowly by the court. Two Step Inquiry from United Building & Construction Trades Council v. Mayor and Council of Camden: 1. Has the state discriminated against out of states with respect to P&I s it accords in state citizens? Yes in Camden Case a. Burden on a Fundamental Right or Important Economic Opportunity Livelihood? b. Constitutional Rights (rare, often challenged under specific amendment) c. Fundamental Rights d. Important Economic Activities i. Excluding out of states from practicing trad or profession (Look to Piper Case) ii. Discriminatory Licensing Fee iii. Preference for in-state employment (Hichlin v. Orbeck, Camden Case) 2. Sufficient Justification? a. Is there sufficient justification for the discrimination and a substantial relationship between the states objective and means used to obtain it? (The state must show that out of staters are the source of the problem like in Camden case analysis) i. Uses a least restrictive alternative analysis ii. Thus far the Court has not found any law that meets this rigorous test. 1. The court in Camden remanded for further findings to see if the local statute bears a substantial relationship to preventing flight.

Note: If the law is traceable to state revenue it survives states can return tax dollars, etc.

Preemption Analysis
Overall Analysis: 1. Is the federal statute constitutional? 2. Are there internal constraints under the Commerce Clause? 3. Are there external constraints under the 10th or 11th amendment? 4. If the law is still valid after 1-3, move to preemption analysis Preemption: 1. Identify the Conflict by looking at the text and the purpose of the federal and state statute. 2. Express Preemption? a. Has congress spoken? Like ERISA? b. What is the scope of the language? 3. Implied Field Preemption? (Analysis from Rice v. Santa Fe) a. Where is congress regulating? Text Legislative History Structure b. Is the federal regulation truly broad in scope? c. Is the scheme of federal regulation so comprehensive as to evidence an intent by Congress to leave no room for the states to supplement it? i. Look to Hines v. Davidowitz Federal Alien Registration Act page. 81 d. Would allowing local regulation disrupt/interfere with federal regulatory efforts? e. Is there a really important state interest being served by the contrary state law? f. State traditional power or unique federal interest (foreign relations and immigration) Burma Case -- embargo g. What field did Congress intend to occupy? h. What is the rationale behind the state law? If there is an additional or different rational from the federal law then the state can regulate there. 4. Implied Conflict Preemption a. Mutually Exclusive?

i. Does the federal statute only create a regulatory floor, a mere minimum standard like in Florida Lime? 1. If yes a state law might not conflict if it simply requires a higher standard. ii. Does the Federal Statute create the entire standard, floor and ceiling? 1. If yes state law might conflict. b. Whether its an i or ii situation is up to the courts judgment to determine the purposes of the federal and state schemes. c. Frustrate the Overall Purpose: i. Does the state law frustrate the over all purpose of the federal statute? 1. Look to Pacific gas Case here it didnt werent ME. a. This case shows how these cases are about statutory interpretation and how the courts characterize the federal and state laws. b. If the court wants to find preemption they will characterize the federal law broadly, and vice versa. c. If they get it wrong Congress can fix it.

Separation of Powers: Analysis for Formalist Approach by Black

1. Did the executive derive his power from an express or implied grant in Article II? a. Remember that in Youngstown Trumans argument was rejected. b. Investing in the Executive and Take care to Execute the laws did not apply in Youngstown b/c POTUS was engaging in lawmaking and policy determination, which the president cannot do (Black). President EXECUTES the law c. Commander in Chief seizing the plants is domestic, not a military action seizing private steel that has nothing to do with Korea 2. RIGID CATEGORICAL DISTINCTION b/w Article I and II a. Has the President stepped out of Article II and into Article I by trying to make law? Black argues that Truman was combining those powers. 3. Did Congress grant this authority? a. In Youngstown, Congress never expressly allowed the procedure, and of the statutes that exist none applied. 4. IF no to 1 and 3 --- authority is not valid. The president has no inherent power it must come from the constitution or congress. Arguments against this approach on page 83 of outline.

Separation of Powers: Analysis for 3 Zones Approach by Jackson

1. Zone 1: Maximum Executive Power his authority is at a maximum for it includes all that he possess in his own right plus all that Congress can delegate. a. Does the Executive act pursuant to express/implied authorization of Congress? i. Yes President has maximum authority and his action is presumptively constitutional because he has Article II and Article I Powers. ii. No Move to Zone 2 or 3 2. Zone 2: Zone of Twilight: Distribution of powers is uncertain a. Does the executive have the power, comes from Article II alone? b. If Congress is silent President acts on only his own Article II powers. c. Constitutionality is fact and circumstance dependent d. Requires judicial balancing: i. Court looks at Congressional record and says Congress hasnt spoken on this issue. ii. Look to potential congressional acquiescence iii. Emergency situation might be a factor iv. Balancing includes executive privilege, impoundment, rescission of treaties, executive agreements, removal of executive officials from office. 3. Zone 3: Lowest Ebb: Congress has spoken and said Dont do it!

a. What did Congress say? b. Can the action be supported using the executives Article II powers alone? c. Domestic v. Foreign Situation? Frankfurters Congressional Acquiescence Test Demands Legislative Accountability. Frankfurter says its a flexible approach not a rigid categorization. When Congress hasnt spoken its up to the court to determine whether the executive can act. In a question like this discuss the view of Black, Jackson and Frankfurter. Remember that Dames and Moore adopted the Flexible Approach.

Foreign Affairs Power

President Commander in Chief Execution of the Law Announces and Implements Military Policy Convene and Adjourn Congress Generally applies foreign Policy Negotiates, Administers, and terminates treaties and executive agreements Establishes and breaks foreign relationships Congress Ratifies treaties Regulates foreign commerce Declares War Funds Army and Navy Regulates Immigration