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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
| | -- By AndrewCascini - 24 Feb 2010 |
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< | BACKGROUND |
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> | A Folksy Anecdote |
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< | The Commerce Clause and the Dormant Commerce Clause |
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> | My mother bought a Honda coupe in 1975. With some hesitation, she drove it home to see her parents one Christmas. When she brought her luggage out to her car the next morning she noticed the “BUY AMERICAN” bumper sticker my grandfather had applied to the back-end of the car during the night. Granddad had worked on the line at GM for thirty-six years up to that point. “What an asshole Dad was,” my mom says. |
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< | Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." This is referred to as the commerce clause. While the Constitution never explicitly bars individual states from interfering with this Congressional power, the Supreme Court has inferred the presence of a "dormant commerce clause" from the text of Article I. This dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states. |
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> | Granddad was an asshole, but he had a point. My mother’s participation in the car market had, in the aggregate with thousands of other like-minded decisions, regulated the American automobile market. |
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> | A Distinction is Made...
The Commerce Power and the Dormant Commerce Power
Article I of the Constitution delegates many different powers to Congress. One of these powers is to "regulate Commerce... among the several states." The Supreme Court has inferred the presence of a "dormant commerce clause" from this text. The dormant commerce clause allows state and municipal legislation resulting in interference with interstate commerce to be evaluated and limited by the Supreme Court, even where Congress has passed no conflicting law. Legislation is often found to violate the dormant commerce clause on the grounds that the legislation is economically “discriminatory” to other states. |
| | The Market Participation Exception |
| | Origin |
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< | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of junked cars. The state would purchase the cars, paying a disproportionate amount for cars with in-state plates and imposing less stringent documentation requirements from in-state scrap processors. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. Choosing to buy in-state junk and junk processing serves was merely participation. |
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> | In Hughes v. Alexandria Scrap Corp., the Court upheld a state program that aimed to reduce the number of abandoned cars littered on the sides of the roads by choosing to buy in-state junked cars and in-state junk processing services at higher prices and with more lenient documentation standards. “Nothing in the purposes of the Commerce Clause prohibits a state from participating in the market,” wrote Justice Powell for the majority. |
| | Limitation |
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< | Yet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions having a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.”
"Downstream" and "upstream" effects |
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> | Yet market participation was held to have its limits. Eight years later in Central Timber Development v. Wunnicke, the Court ruled that states, while enacting legislation to enable market participation, must not “impose conditions, whether by statute, regulation, or contract that have a substantial regulatory effect outside the particular market.” This restriction marked the “limit of the market-participant doctrine.” |
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< | GOALS: |
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> | The Takeaway |
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< | Describe the downstream and upstream effects. (does this need to be here?) |
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> | The dormant commerce power and the market participation exception, working together, flesh out a tidy doctrine. When states pass legislation that affects interstate commerce, that legislation is subject to Constitutional review. If the legislation merely enables the state to “participate” in the market, it is acceptable. If, however, it “regulates” the market, it is to be treated entirely differently and struck down. |
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< | MARKET PARTICIPATION VERSUS MARKET REGULATION |
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> | ...but What Does It Signify? |
| | THE DISCRETE LABELS, WHAT THEY SIGNIFY BUT WHAT THEY REALLY DO |