Chapter 4 Terms
ANALYZING INTERSTATE PRIVILEGES & IMMUNITIES CLAUSE PROBLEMS
1. Is the person being discriminated against an out-of-state citizen or resident? If so, he's covered by the clause, go on to #2. (Corporations and aliens are not protected by the clause.) 2. Is the activity regulated a right "fundamental to national unity"? (Essentially, this means the right to earn a living or otherwise pursue a commercial activity, and probably also means rights like receiving medical care, owning property, and accessing the judicial system.) If it is, go on to #3. If not, it's not protected. 3. Is the discrimination closely related to a substantial state purpose (e.g., protecting the state's natural resources)? If it is, go on to #4. If not, it violates the clause. 4. Is the discrimination a reasonable means of protecting the substantial state purpose—namely, are there no less-restrictive means reasonably available? If so, the discrimination is permissible. If not, the discrimination violates the clause.
ANALYZING STATE STATUTES AFFECTING INTERSTATE COMMERCE
1. Is there relevant federal legislation? If so, there's a preemption issue, not a Commerce Clause issue. If not, go on to #2. 2. Does the statute discriminate against interstate commerce—that is, does it either intentionally or unintentionally favor local economic interests over the economic interests of other states? If it does, the statute is invalid without Congress' consent to so discriminate, regardless of whether the burden would otherwise be permissible, unless either (a) it is designed to protect health and safety interests, it is reasonable, and no non-discriminatory alternatives are available; or (b) the state is a "market participant," in which case it can discriminate in favor of local businesses as long as it doesn't violate the interstate Privileges & Immunities Clause of Article IV (watch for this any time a state or city interferes with private sector employment). 3. If the statute is non-discriminatory in both intent and effect, a balancing test is used to determine whether the burden on interstate commerce is unreasonable, thus invalidating the regulation: the burden on interstate commerce (e.g., cost and difficulty of compliance, inefficiency created, existence of less burdensome alternatives) versus the strength of the state interest in the regulation. N.B.: There is a strong presumption of validity of non-discriminatory statutes where the state interest is health, safety, or social welfare; on the other hand, a court is not likely to uphold the statute where the state interest is economic (i.e., aiding local business interests). NOTE: Non-discriminatory regulation enjoys a presumption of constitutionality that can only be overcome by a clear showing that the state benefit is outweighed by a national interest in uniformity or the free flow of commerce. NOTE: Congress can't authorize state violations of constitutional provisions other than the Commerce Clause (e.g., Due Process and Equal Protection).
The State of Serenity enacts a statute that requires potato farmers to remove federal labels on potato bags and replace them with state-approved labels, which involves an additional expense to the farmer. One out-of-state grower, Farmer Johannes, challenges this as an invalid state regulation of interstate commerce. What result?
According to the Supremacy Clause, federal law will control, because the state law here directly conflicts with the federal law. McDermott v. Wisconsin, 228 U.S. 115 (1913). There is a direct conflict here, because one can't comply with both the federal and state regulations. Actual conflict cases are the clearest application of the Supremacy Clause. RELATED ISSUE: Say the state regulation required potato farmers to add a state label without replacing the federal label. Then there would be no direct conflict with federal law, because a farmer could comply with both federal and state requirements. Instead, the conflict would be indirect, and the validity of the state requirement would depend on whether Congress intended to preempt the entire potato-labeling field (and, beyond that, whether it unduly burdened interstate commerce, which it almost certainly wouldn't). NOTE: The area would be subject to federal regulation under the Commerce Clause, and subject to state regulation by virtue of state police powers.
The State of Sillycon enacts a statute regulating the marketing of high-tech instrumentation. Subsequently, Congress enacts a similar regulation wherein Congress provides that it intends the regulation to cover the whole field of high-tech instrumentation. Will the non-conflicting state law still be valid?
No. If Congress provides for regulation intended to cover the whole area in question, and the area is one in which both Congress and the states have power to regulate (e.g., commerce, with federal power coming from the Commerce Clause and state power from police powers), then the federal law supersedes the state law, regardless of whether the state law directly conflicts with the federal law.
What's the most common application of the Supremacy Clause?
Commerce Clause problems. In fact, the only time you use a commerce-clause analysis to decide the constitutionality of a state statute impacting interstate commerce is when there's no relevant federal legislation. If there is relevant federal legislation, then you analyze the problem under the Supremacy Clause. You ask three questions: 1. Did Congress expressly authorize or prohibit state regulation (or does the Constitution expressly bar state action— e.g., coining money, conducting foreign affairs)? If so, that authorization or prohibition controls. If not, go on to #2. 2. Is there a direct conflict between the federal and state regulation (e.g., joint compliance isn't possible, or the objectives conflict)? If so, federal law automatically preempts. If there's no direct conflict (i.e., the federal and state statutes merely cover the same subject matter), go on to #3. 3. Was the federal law intended to occupy the entire field? If so, the federal law preempts the state law. If not, the state law stands. NOTE: Supreme Court cases indicate that Congress will be deemed to have preempted an area only where its intent is unmistakable, or where the nature of the regulated subject matter does not permit any other conclusion. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963).
The State of Elliott enacts a statute preventing aliens from owning more than five acres of land in Elliott. E.T., a resident alien, wants to buy ten acres of land in Elliott and challenges the statute on grounds that it violates the interstate Privileges & Immunities Clause. What result?
E.T. loses, because he isn't protected by the interstate Privileges & Immunities Clause (although he would have a valid Equal Protection claim). The interstate Privileges & Immunities Clause only protects out-of-state citizens and residents, not corporations or aliens. Article IV, §2, cl. 1. NOTE: Had E.T. been a U.S. citizen, he would have prevailed, because owning property is a "right fundamental to national unity" and is thus covered by the clause. NOTE: Both corporations and aliens are considered "citizens" under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. E.T. would have had a better claim under Equal Protection, since alienage is a "suspect" classification and would subject the statute to strict scrutiny, making it almost certain that the statute would be voided.
Under what circumstances may a state tax activities involving interstate commerce?
First, the state may tax such commerce if Congress expressly so consents. When there is no guidance from Congress, the validity of the tax will depend on whether it discriminates against interstate commerce. 1. If it is discriminatory (e.g., it singles out interstate commerce for taxation, and there's no similar tax on local commerce), it virtually automatically violates the Commerce Clause. (It would also violate the interstate Privileges & Immunities Clause, Art. IV, §2 and perhaps, the Equal Protection Clause if the discrimination isn't rationally related to a legitimate state purpose.) Ch.6-II(C). 2. If it's non-discriminatory, the court uses a balancing test to determine the validity of the tax on interstate commerce. The court balances the state's need for revenue versus the burden on the free flow of commerce. The burden generally will be too great under the Commerce Clause, if multiple burdens are imposed on an interstate activity by various state taxes. It will be invalid under the Due Process Clause if there are "insufficient contacts" between the subject matter and the state to justify the state's taxing the subject matter (because the subject matter would receive insufficient benefits from the state to justify the tax).
It's duck season and Elmer Fudd wants to go on a duck hunting vacation in the State of Animation, adjacent to the state in which Fudd lives. When Fudd applies for an Animation duck hunting license, he finds that the license will cost him $400, while an Animation resident could obtain the same license for $20. He challenges the scheme, contending that it violates the interstate Privileges & Immunities Clause. What result?
Fudd will lose. The interstate Privileges & Immunities Clause, Article IV, §2, cl. 1, only prevents discrimination against out-of-state citizens and residents as regards rights fundamental to national unity. Recreational duck hunting is not such a right. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978). RELATED ISSUE: Say Fudd's livelihood consisted of the processing of duck meat into duck loaf, duck dogs, duck jerky and the like, and that Fudd hunted ducks to get his meat supply. Then his duck hunting would probably be such a "fundamental right" (earning your livelihood from your chosen pursuit normally is), in which case it would probably be protected by the interstate Privileges & Immunities Clause.
What does the Supremacy Clause do?
It provides that any state or local law conflicting with a valid federal law must be struck down. NOTE: The Supremacy Clause does not provide a source of power for the federal government!
The State of Kangaroo restricts the right to practice law in the State to Kangaroo residents. Les Judicata, a non-resident, has passed the Kangaroo bar. He challenges the restriction as a violation of the interstate Privileges & Immunities Clause. The State claims the restriction is valid because lawyers are officers of the court who exercise state power, and making Kangaroo accept non-resident lawyers would threaten its sovereignty. In addition, the State argues, non-resident lawyers would be less competent due to their lesser familiarity with local rules and customs. What result?
Les will prevail. The interstate Privileges & Immunities Clause, Article IV, §2, cl. 1, generally prevents states from discriminating against out-of-state citizens and residents with regard to rights fundamental to national unity. Pursuing one's livelihood is considered such a fundamental right. Lawyers aren't considered to exercise actual governmental power, so the sovereignty argument doesn't help the State; as to lawyer competence, this is a substantial state concern, but it could be accomplished by less restrictive means (e.g., a licensing exam). As a result, the restriction is invalid. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). RELATED ISSUE: Les would also have an Equal Protection claim, because the restriction classifies people into residents and non-residents, and it restricts a fundamental right of non-residents (the right to interstate travel). As a result, the classification would be subject to strict Equal Protection scrutiny, and would almost certainly be overturned.
The State of Warner is one of the few with a population of the rare yellow-bellied sapsucker. A state statute forbids hunting and trapping yellow-bellied sapsuckers and authorizes game wardens to seize and destroy any traps they find. A federal consumer safety regulation regulates the design of such traps to prevent them from pinching the fingers of people who set the traps. Does the federal regulation preempt the state statute?
No, because the regulations have different purposes, a fact that indicates that the two regulations can co-exist. When federal and state laws conflict, the federal law takes precedence under the Supremacy Clause. If there's no direct conflict, the state law is only preempted if the federal law was intended to preempt the entire field. Here, there's no conflict at all. Instead, the laws have two very different purposes—the federal law was designed to make the traps safe, and the state law was intended to protect the animals. The state law does not impede operation of the federal law, and there's no indication the federal law was intended to preempt the entire field of yellow-bellied sapsucker traps. As a result, the state law will stand. NOTE: If the objectives behind the two regulations were incompatible, the state regulation would fail, even if the state and federal regulations didn't conflict on their face.
Congress passed legislation imposing limited sanctions on the foreign Nation of Apathy to encourage it to act more democratically. The U.S. State of Indignation is critical of the numerous human rights violations committed by Apathy. State of Indignation therefore passes legislation prohibiting the state and its agencies from buying goods or services from companies that do business with Apathy. Is the state law valid?
No. Even though Congress and the State of Indignation have similar goals, Congress' action preempts the state from passing sanctions. In the area of foreign policy, the Court is likely to find state action preempted by Congress, even where, as here, Congress did not expressly preempt the state legislation and the state and federal goals are consistent. The Court unanimously found preemption on similar facts in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).
State of Justice passes the Holocaust Victim Insurance Relief Act, which requires any European insurance company doing business in state to disclose whether it issued insurance policies during the Holocaust. If the European insurance companies fail to comply with the law, they will lose their licenses to do business in the State of Justice. There is no federal statute on this topic. Is the Holocaust Act valid?
No. In a 5-4 decision, the Court ruled that a similar state statute interfered with the President's ability to negotiate executive agreements in this area of foreign policy and therefore was preempted. Even though the President had chosen not to pursue a policy in this area, the state was not allowed to enact a contrary policy because any such policy would interfere with the President's choices. American Insurance Ass'n v. Garamendi, 539 U.S. 396 (2003).
State of Warden is concerned that there are too many frivolous lawsuits by prisoners against state prison officials that are clogging the courts. In response to this problem, Warden sets up a special state Court of Claims that will hear civil rights cases against prison officials only. The Court of Claims is a court of limited jurisdiction where prisoners will not be allowed punitive damages or attorneys' fees. Cases against prison officials brought under the federal civil rights statutes will be heard exclusively in the Court of Claims. Is the State Court of Claims constitutional?
No. In a 5-4 vote in Haywood v. Drown, 129 S. Ct. 2108 (2009), Justice Stevens wrote that a similar court system violates the Supremacy Clause, Article VI, cl. 2, because the state's policy is "contrary to Congress' judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages . . . a State may not . . . relieve congestion in its courts by declaring a whole category of federal claims to be frivolous."
Congress passed the Clean Water Act (CWA) to protect "the navigable waters of the United States, adjoining shorelines and other natural resources of the United States" against harm from environmental accidents. To protect those waters and resources, the CWA assigns a monetary penalty not to exceed $10,000 per day against any person or corporation that is responsible for an oil spill onto the waters of the United States. Big Oil Company negligently spilled oil into the water surrounding the State of Salmon. The fishermen of the State of Salmon, whose jobs were affected by the spill, and their fellow citizens, whose health was affected by the spill, sue Big Oil for their economic loss and personal injury. Are their lawsuits preempted by the Act?
No. In the real case about the Alaska oil spill, the Court ruled that Congress had not expressed any intent to occupy the field in the Clean Water Act. Nor was there any reason for the Court to conclude that Congress would have any interest in preempting state tort law, which compensates injuries to persons, in an act whose goal was to protect natural resources. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008).
Suzi Queezi was feeling nauseous when she arrived at the hospital, where her physician, Doctor Donna, prescribed Tummis to take care of the problem. Tummis can be taken orally or administered directly into the vein by the IV-push method. Doctor Donna opted for the latter approach even though it is more dangerous than giving Tummis orally. Doctor Donna mistakenly put the IV-push into an artery instead of a vein. Queezi contracted severe blood poisoning and lost her leg. Queezi sued in state court on a state tort law claim that Tummis should have been labeled to warn doctors that the IV-push method is dangerous. Tummis' label was approved by the Food and Drug Administration (FDA), which is authorized to "make drug labeling decisions that strike a balance between competing objectives." Is Queezi's lawsuit preempted?
No. On similar facts, the Court ruled against preemption in Wyeth v. Levine, 129 S. Ct. 1187 (2009). First, the Court concluded there was no express preemption as in the Riegel case on the prior card. The Court then ruled that there is a presumption against implied preemption in order to protect the states' police powers. The presumption held in Wyeth because Congress knows how to write an express preemption statute and failed to do so in the labeling context. NOTE: It is easier to win on express preemption claims because of the presumption against implied preemption claims.
Does the Supremacy Clause state that the Supreme Court is supreme over the other branches in interpreting the Constitution?
No. The Supremacy Clause states that the Constitution and Laws of the United States are supreme over state laws. NOTE: In Cooper v. Aaron, 358 U.S. 1 (1958), the Court stated "the federal judiciary is supreme in the exposition of the law of the Constitution."
Does the interstate Privileges & Immunities Clause require a state to permit a foreign corporation (incorporated in some other state) to do business in state?
No. The interstate Privileges & Immunities Clause only protects out-of-state citizens and residents, and a corporation (or an alien) is not considered a "citizen" or "resident" for purposes of the clause. NOTE: Once a state allows a foreign corporation to do business in-state, that corporation will be protected by the Equal Protection and Due Process Clauses, under which a corporation is a "citizen." Thus, under the Equal Protection Clause, a state couldn't discriminatorily burden the foreign corporation, unless the discrimination was rationally related to some legitimate state purpose. (Note that promoting local business at the expense of an out-of-state competitor is not a legitimate state purpose.)
Is interstate commerce immune from state taxation?
No; although Congress can forbid states from taxing interstate commerce, if there is no contrary federal legislation, the Court will balance the burden on commerce against the state's need for revenue, and require interstate commerce to pay a fair share. EXAMPLE: The State of Fandango imposes a 5% tax on interstate telecommunications originating or terminating in state, which is charged to an in-state service address. (There is a credit for any taxpayer proving that he paid a tax in another state on the same call triggering the 5% tax.) Such a tax is constitutional. Goldberg v. Sweet, 488 U.S. 252 (1989).
Do states have any power to regulate foreign commerce?
No; regulating foreign commerce is exclusively a federal power. RATIONALE: There must be only one voice in regulating commercial relations with other governments. Michelin v. Wages, 423 U.S. 276 (1976). RELATED ISSUE: A state can only tax foreign commerce if these six requirements are met: (1) The tax is non-discriminatory; (2) The activity being taxed has sufficient "minimum contacts" with the taxing state; (3) The tax is apportioned fairly; (4) The tax is related to services provided by the state; (5) The tax notwithstanding apportionment does not create a substantial risk of international multiple taxation; and (6) The tax doesn't prevent the federal government from speaking "with one voice when regulating commercial relations with foreign governments." Japan Line, Ltd. v. Los Angeles, 441 U.S. 434 (1979).
The Food and Drug Administration establishes standards for the collection of blood plasma. Transylvania County in the State of Silvercross has an ordinance that imposes additional regulations on collecting blood plasma. Dracula Enterprises, a company that collects blood plasma, claims the federal standard preempts the county standard. Does it?
No; the state statute is valid. The issue here is whether the federal standard preempts the field of blood plasma collection, as there's no direct conflict between the two statutes. If a subject area is one that has traditionally been subject to mainly local rather than national regulation, preemption is unlikely. Here, the field is one historically left to the states—health and safety regulation. Thus, a court would be unlikely to find preemption (absent a clear expression from Congress that it intended to preempt the entire area). Hillsborough County, Fla. v. Automated Medical Labs, 471 U.S. 707 (1985). RELATED ISSUE: The converse is also true; a federal statute in an area of historically national control (e.g., patents, trademarks, immigration, bankruptcy) will generally preempt a related state statute.
The State of Corinthia is building a new state capitol building. A state statute requires that 50% of the workforce on any state-funded construction project must consist of state residents. The ordinance was enacted in response to a study that showed that many state construction workers were unemployed and forced to emigrate on this basis. The ordinance is challenged on Article IV Privileges & Immunities grounds by some out-of-state construction workers denied jobs on the capitol project. The state claims that the interstate Privileges & Immunities Clause doesn't apply to the government as a market participant. Is the government's argument correct?
No—but it may still win the case. The interstate Privileges & Immunities Clause prevents states from discriminating against out-of-state citizens and residents as regards "rights fundamental to national unity." There is no exception for the state as a "market participant." However, the state may still prevail if it proves that protecting jobs is a substantial state purpose and that the statute is a reasonable means of attaining this goal. United Building and Constr. Trades Council v. Camden, 465 U.S. 208 (1984). RELATED ISSUE: Say, instead, that the high unemployment rate in Corinthia was not due to a lack of job opportunities, but rather due to the fact that the workforce lacked job skills and education and was by and large too far away from the job opportunities that did exist in Corinthia. Because the state's preferential hiring would not remedy the problem but would still adversely impact non-residents, it would violate the interstate Privileges & Immunities Clause. Hicklin v. Orbeck, 437 U.S. 518 (1978). NOTE: There is a "market participant" exception for states under the Commerce Clause. The rationale for the distinction is that the Commerce Clause only addresses regulation, and when the state itself is a market participant (it's buying or selling), it isn't "regulating." By contrast, the interstate Privileges & Immunities Clause bars all discriminatory state conduct, whether regulatory or not, if it unfairly restricts essential activities and basic rights of out-of-staters.
The State of Medusa requires that hairdressers must be licensed to practice their craft in the state. To get a license, one must graduate from an in-state hairdressing academy. Does this requirement violate the Privileges & Immunities Clause?
Probably. The interstate Privileges & Immunities Clause, Article IV, §2, cl. 1, generally prevents states from discriminating against out-of-state citizens and residents with regard to rights fundamental to national unity. Pursuing one's livelihood is considered such a fundamental right. A hairdresser's license should qualify as affecting a right to pursue one's livelihood. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). NOTE: A license for recreational duck hunting is not such a right. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978).
RECAP: ANALYZING STATE STATUTES AFFECTING INTERSTATE COMMERCE
State regulations affecting interstate commerce must satisfy the following three requirements: 1. The regulation must pursue a legitimate state end; 2. The regulation must be rationally related to that legitimate state end; and 3. The state's interest in the regulation must outweigh the regulatory burden.
A state law directly contravenes a statute enacted by Congress. What clause in the Constitution would provide the answer for which of the two will remain valid?
The Supremacy Clause of Article VI. That clause states that: "This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land." In such cases, the state law is preempted by the federal law. NOTE: Most problems with the Supremacy Clause come about when there's no direct conflict between state and federal law; and the two merely address the same subject matter in different (but not explicitly inconsistent) ways. A direct conflict exists where one can't comply with both federal and state regulations, or the objectives of the two conflict. NOTE: Most Supremacy Clause problems involve the Commerce Clause.
What is the "market participant" rule relating to interstate commerce?
When the state is a market participant (i.e., buyer or seller of goods), it may discriminate in favor of local businesses—that is, it could buy from local businesses exclusively (or preferentially); similarly, it could sell to them exclusively/preferentially. RATIONALE: The Commerce Clause only prohibits discriminatory regulation; when a state itself buys or sells, it's a participant, not a regulator. EXAMPLES: A state could require that all cement produced by a state-owned factory be sold only to state residents; it could sell state-owned resources to state residents at a lower price than to out-of-staters; it could offer a company a cash bonus or tax exemption for opening a factory in state. It could not, however, require that a privately owned factory sell its goods only to people in state; it couldn't pass laws requiring a company to give employment preferences to state residents. N.B.: Keep in mind that the fact a state is a market participant doesn't insulate it entirely from violating the Commerce Clause. Situations in which the state bears the cost of providing economic benefits are permissible, because the state is spending its own tax revenues, as it has a right to do. However, where what the state is doing is really shifting the cost of the local benefit to out-of-staters (e.g., by requiring privately owned local businesses to sell to people in-state at a discount), the action is a kind of regulation, and it violates the Commerce Clause. N.B.: The state as a market participant would still be subject to the interstate Privileges & Immunities Clause, which limits its leeway as a market participant. Watch for this whenever a state or city interferes with private sector employment (e.g., by requiring a contractor on a state building project to hire only state residents for the project; this could violate the interstate P & I Clause).
Tired of competing with Japanese car companies, car makers in Detroit persuade the State of Michigan to declare war on Japan. The state militia loads Lincoln Continentals into portable rocket launchers and aims them at Tokyo. The federal government has not declared war on Japan and has no intention of doing so. Is Michigan's declaration of war "preempted"?
Yes, because states have no power to declare war. Preemption is an issue whenever the federal government and a state regulate the same matter, or a state regulates something it has no authority to regulate. When the Constitution prohibits state action in an area, any state regulation in that field is void. Such areas include coining money, foreign affairs, and—as here—declaring war. Because Michigan is constitutionally barred from declaring war, its doing so is preempted.
The Federal Motor Vehicle Safety Act provides, in part, that car companies may use seat belts to meet federal occupant crash protection standards. Furthermore, the Act provides that "no state shall have any authority to establish, or to continue in effect, any motor vehicle safety standard that is not identical to the federal standard" applicable to the same aspect of vehicle performance. Quasimodo is disfigured in a car accident. He brings a product liability suit in state court against Field Marshal Motors, the manufacturer of his car, alleging a design defect in that his car lacked air bags. Under state common law the lack of air bags could constitute a design defect. Does the federal law preempt the state law?
Yes, because the federal law expressly covers the entire area of crash protection. Here, the state common law would require safety measures in addition to the federal requirements. The federal law is satisfied by seat belts; the state common law might require air bags. While there's no direct conflict, the state law will nonetheless be invalid if Congress intended to preempt the entire field. That's the case here, because the federal law expressly requires that state law mirror the federal standard applicable to the same aspect of vehicle performance. As a result, the federal law will preempt the state law. Cox v. Baltimore County, 646 F. Supp. 761 (D. Md. 1986); Wood v. General Motors, 865 F.2d 395 (1st Cir. 1988); Taylor v. General Motors, 875 F.2d 816 (11th Cir. 1989).
Can Congress forbid states from taxing interstate commerce?
Yes. Congress can, under its commerce power, forbid states from passing taxes that affect interstate commerce. Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946). NOTE: If there isn't any federal legislation, the states are free to place a fair level of tax on interstate commerce, because such commerce must be expected to shoulder its fair share of a state's expenses. NOTE: State taxes that discriminate against out-of-state residents also violate the Article IV, §2, interstate Privileges & Immunities Clause. NOTE: State taxes that discriminate against interstate commerce violate the Equal Protection Clause if they are not rationally related to a legitimate state purpose (e.g., the state cannot deny a tax exemption to a corporation solely due to its being incorporated in another state). WHYY v. Borough of Glassboro, 393 U.S. 117 (1968).
Are there any circumstances under which states can regulate interstate commerce?
Yes. Non-discriminatory regulation is allowed as long as it meets this balancing test—the burden on interstate commerce (e.g., cost and difficulty of compliance, inefficiency created) is weighed against the strength of the state interest in the regulation to determine whether the burden on interstate commerce is "clearly excessive." Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). In general, there is a strong presumption of constitutionality of non-discriminatory statutes where the state interest is safety, health, or social welfare; courts are much less likely to uphold statutes that only protect local economic interests. NOTE: Congress does, in practice, enjoy exclusive control over foreign commerce—and foreign commerce is interpreted broadly (e.g., a shipment from San Francisco to San Diego could be considered "foreign commerce" if the shipment was on the "high seas"). Lord v. Steamship Co., 102 U.S. 541 (1880).
Art Beats suffered a heart attack while running a marathon. At the hospital a balloon catheter, which is a medical device manufactured by Medtrials, Inc., was inserted into Art's heart by a surgeon. Later the balloon catheter popped and Art died. His family sued in state court under state tort law arguing that the balloon was defectively designed and labeled. The federal Medical Devices Act (MDA) provides that once a medical device receives premarket approval from the Food and Drug Administration (FDA), "no state or local government may impose any requirement that either relates to the safety or effectiveness of the device, or that is different from, or in addition to, any FDA requirement applicable to the device." Medtrials' balloon catheter received premarket approval from the FDA. Is Art's lawsuit preempted?
Yes. The Court ruled 8-1 in Riegel v. Medtronic, 128 S. Ct. 999 (2008), that a similar lawsuit was expressly preempted by the MDA. NOTE: Express preemption is present when the law specifically or expressly says that state or local law is preempted. Contrast express with implied preemption, where Congress' action suggests preemption. The two main types of implied preemption are field preemption and conflicts preemption.
