I need some clarification on a DCC issue. I was reading an old exam from a professor. There was an issue where the federal government had previously passed a law pursuant to its commerce clause authority. Later, congress repealed it. Subsequently, a state passed a law that was the exact same thing as the federal law.
Now, my professor said the first question to ask is really does this state law regulate commerce at all. if not, we shouldnt even be analyzing this through the DCC. Then, if we conclude it does, we use the DCC analysis (i.e. is this discriminatory, facial/nonfacial; if not discriminatory, use balancing approach.)
Does this make sense? Can someone explain why we even need to ask if the state law regulates interstate commerce. My original thought was if the state law was discriminatory, even if not regulating interstate commerce, it could still be struck down under DCC.
You need to ask it the law regulates interstate commerce (ISC) because Congress’ exclusive power to regulate ISC implies a limit on states’ powers to regulate ISC. THe other stuff like discrimination (facial/nonfacial), balance/burden, helps you sort out the gray areas of interfering with ISC when it isn’t obviously regulation of ISC.
EDIT: To be clearer…
Regulating ISC? INVALID
Pre-empting Federal area without consent? INVALID
Facially discriminating? INVALID
Non-facial? Do Balance/burden test
Market participant? VALID
Market participant with downstream regulation? INVALID.
Ok that’s what I was sort of thinking. So bottom line: the first question to ask is if the state law is actually regulating interstate commerce. Then use the DCC analysis concerning discriminatory or not?
That is correct. You have to ask that initial question because there is no dormant commerce clause in the constitution. The only reason we have that doctrine is because the court infers it from the existence of the commerce clause itself (there’s also a historical argument, which I won’t get into). Their reasoning is that since it’s an enumerated power of Congress, it cannot be within the state’s power to regulate it. Thus if it would not fall within congress’ commerce power, there is no reason to infer its prohibition.
This is so helpful. So essentially we are asking if this state law is regulating interstate commerce at all. If it is, the analysis ends here…its preempted by congress’s exclusive right to regulate interstate commerce.
We only examine state laws under the DCC if they are first deemed not to be valid legislation through the CC?
This should clear it up for me. thanks guys…saviors.
Eh, don’t take what I said too far. 1) don’t talk about in terms of preemption because it’s not technically preempted (you need an actual federal law in order for there to be preemption). 2) Don’t think about it as having passed the commerce clause test. They are different tests, and you don’t do both.
What I said is just about the logical negative inference that creates the DCC doctrine. There’s no reason to do a DCC analysis if its not an issue of interstate commerce to begin with, that’s all you need to know about it.
Ok sounds good. I’m just still a bit confused. My professors exam essentially wanted us to look at the federal ESA Act as mentioned above and determine if that was a valid regulation of interstate commerce. If it was, then that means the state ESA is regulating interstate commerce. Then he said, once we determined this, we use the DCC analysis. Does this make sense? I’m just confused why he wanted us to even determine if the state law was regulating interstate commerce. Who cares? Cant we just use the DCC?
Has congress regulated the in the area? If so, then it’s preempted and there’s no need for a “dormant” commerce clause analysis; you have “active” commerce clause. But if not, go on to #2.
Does the state regulation discriminate against interstate commerce either on its face or in purpose? If yes, it’s invalid; if not, keep going.
Does the regulation burden interstate commerce? If yes, then Pike balancing test. If no, then no problem, it’s valid.
It would help if you gave us what the law Congress originally passed and the subsequent State law.
And side note: even though Congress has the authority to regulate Commerce under article 1, sec 8 it does not say they have the SOLE authority, nor will you find any provision in the Constitution forbidding the States from regulating commerce.
Sorry, Congress passed the ESA, then just passed some general law repealing the ESA. There is now no federal law on point. Then, the state passed a law IDENTICAL to the original ESA. My professor said the first questions is to determine if the state law regulates interstate commerce at all. This turns on whether the federal ESA was valid under the CC. Then we go into the DCC issues.
If the federal ESA was not a valid regulation of interstate commerce, then there is no issue and this is over, right?
If the federal ESA was a valid regulation, we now go into DCC analysis?
Your prof is giving you the answer to the test. He’s saying the question is an opportunity to show that you both understand how to determine if a federal law passed under commerce clause is valid, then to move on and show you understand dormant commerce clause analysis.
The State may regulate commerce (see Market participation doctrine)… the State can’t pass a law that DISCRIMINATES against ISC, … unless the State is acting as a market participant.
In such cases the state may overcome this presumption on a showing that 1) the regulation is rationally related to a legit state goal and 2) there are no other workable alternatives.
It’s also worth noting that states still may get away with facially/effectively discrim laws via the lower burden applied in the public-function exemption: United Haulers. Ky v. Davis.