Legislation must be justified by an actual and compelling interest and the legislation must be precisely tailored to meet it Important state interest non-economic No reasonable nondiscriminatory alternative Carefully consider comparisons to the following examples (1986) Maine v. Tailor Maine bans out-of-state baitfish constitutional because they are protecting from parasite found in out-of-state fish undetectable Pretext regulation on all alcohol with an exception for – Hawaii alcohol made with a only found in HI unconstitutional Participant Exception State acting as a market participant (purchase, sell, subsidize, etc.) can act like any other private participant (but no regulation) (1980) Upheld SD state-owned cement plant Reeves, Inc. v. Stake – selling primarily to in-state companies (1984) Overturned South Central Timber Dev. v. Wunnicke – regulation requiring Alaska timber to be processed” in “partially state even though state was also a timber processor Does the (non-discriminatory) state regulation burden interstate commerce? If yes, invalid unless interest in regulation outweighs the burden on interstate commerce (Pike v. Bruce Church) State regulation has nondiscriminatory but discriminatory purpose, effect Balancing (Hughes 1979) v. OK, Whether statute regulated even-handedly with only effects “incidental” on interstate commerce or instead discriminated against interstate commerce facially or in practical effect (i.e. threshold) Whether the statute serves a legitimate local purpose, and if so Whether alternative could promote this local purpose as effectively without discriminating against interstate commerce (1970) AZ law requiring cantaloupes grown v. Bruce Church – to be crated in-state before shipping, Church wants to crate in CA Struck down even without intent to discriminate because exceeded benefits Privileges and Immunities Clause P&IC If a state gives a right to its citizens, it must give the same right to citizens of – other states (1823) Corfield v. Coryell Right to pass through or travel in state Right to in state for business or other purposes” “reside Right to do business there whether it involves agriculture, professional “trade, pursuits, or otherwise” Right to hold, and dispose of property, either real or personal” “take, Right to pursue a livelihood (1948) Struck down SC statute requiring non-residents to pay Toomer v. Witsell – 100x the licensing fee of in-state residents for commercial shrimp boats
Legislation must be justified by an actual and compelling interest and the legislation must be precisely tailored to meet it Important non-economic state interest No reasonable nondiscriminatory alternative Carefully consider comparisons to the following examples Maine v. Tailor (1986) Maine bans out-of-state baitfish constitutional because they are protecting from undetectable parasite found in out-of-state fish Pretext – Hawaii regulation on all alcohol with an exception for alcohol made with a only found in HI unconstitutional Participant Exception State acting as a market participant (purchase, sell, subsidize, etc.) can act like any other private participant (but no regulation) Reeves, Inc. v. Stake (1980) – Upheld SD state-owned cement plant selling primarily to in-state companies South Central Timber Dev. v. Wunnicke (1984) – Overturned regulation requiring Alaska timber to be “partially processed” in state even though state was also a timber processor Does the (non-discriminatory) state regulation burden interstate commerce? If yes, invalid unless interest in regulation outweighs the burden on interstate commerce (Pike v. Bruce Church) State regulation has nondiscriminatory purpose, but discriminatory effect Balancing (Hughes v. OK, 1979) Whether statute regulated even-handedly with only “incidental” effects on interstate commerce or instead discriminated against interstate commerce facially or in practical effect (i.e. threshold) Whether the statute serves a legitimate local purpose, and if so Whether alternative could promote this local purpose as effectively without discriminating against interstate commerce v. Bruce Church (1970) – AZ law requiring cantaloupes grown to be crated in-state before shipping, Church wants to crate in CA Struck down even without intent to discriminate because exceeded benefits Privileges and Immunities Clause P&IC – If a state gives a right to its citizens, it must give the same right to citizens of other states Corfield v. Coryell (1823) Right to pass through or travel in state Right to “reside in state for business or other purposes” Right to do business there whether it involves “trade, agriculture, professional pursuits, or otherwise” Right to “take, hold, and dispose of property, either real or personal” Right to pursue a livelihood Toomer v. Witsell (1948) – Struck down SC statute requiring non-residents to pay 100x the licensing fee of in-state residents for commercial shrimp boats
Constitutional%20Law%20Yoshino%20Spring%202013.docx