Welcome back to the Deep Dive. Our mission today is pretty
specialized, but absolutely critical.
If you're prepping for a Con law final or, you know, staring down
the bar exam, you know the toughest questions are always
right there at the intersection of state and federal power.
That's right. And today we're doing a really
focused deep dive. Think of this as your ultimate
prep session. We are going to connect the dots
between foundational black letter law, things like due
process, and the huge modern shifts from cases like NFIB
Murphy and the big one, National Pork Producers Council V Ross.
Our. Goal is simple.
We want to extract the key rules, nail the tests, and
really clarify the doctrinal fights that define federalism
today. This whole balance between
federal supremacy and state sovereignty, it's classic exam
territory. We're here to give you the
shortcut straight to the winning argument.
To do that you have to start at the foundation.
I mean, you have to start with individual rights.
No matter what the government wants to do, its power is always
limited by the rights of the person.
OK, so let's unpack that with a quick but deep refresher on the
due process clauses. We're talking about the Fifth
Amendment for the feds and the 14th for the states.
Right, and the core rule sounds simple.
Governments can't deprive any person of life, liberty, or
property without due process of law.
But that one sentence, well, it splits constitutional law into
two massive fields that you absolutely have to keep separate
on an exam. First up is procedural due
process. This is all about fair process.
It's the how of a deprivation. So if the government wants to
take away a protected interest, say your public benefits or a
professional license, what steps does it have to take to make it
fair? Exactly.
And the analysis is a three-step process.
First you ask is there a protected interest, life,
liberty or property? Second, was there a deprivation
by the government? And 3rd, and this is the key
part, what procedures are required?
And to answer that, you have to apply the Matthews V Eldridge
factors. The classic balancing test?
Let's name those factors because this is pure Xan gold.
What are the three things the court has to balance?
OK. So first, the private interest
that's affected, I mean how important is this thing to the
individual? Second, you look at the risk of
an erroneous deprivation through the procedures they're currently
using and what value you know additional safeguards might
have. Could a hearing prevent a
mistake? And the third.
The third is the government's interest.
That includes the fiscal and administrative burdens that the
extra procedures would create. You're balancing the person's
need against the government's burden to figure out what
process is due. So that's procedural due
process, but then you have the really contentious area,
substantive due process. This isn't about the how, it's
about the what. It says.
There are some fundamental rights the government can't
interfere with at all, no matter how good the procedures are.
And this is where the standard of review is everything, and
it's totally binary. If a law infringes on a
fundamental right, and we're talking about rights deeply
rooted in history, like marriage, contraception,
parental rights, the government has to satisfy strict scrutiny.
The law have to be necessary for a compelling government
interest. Which is almost always fatal for
the law. Almost always, but for non
fundamental rights, which is basically all economic and
social regulation, you just apply rational basis review.
The law only has to be rationally related to a
legitimate government purpose. And here's where you have to
know about the Lochner era. Historically, we think of
rational basis as super differential now, but it wasn't
always. Back in the day, the court used
a really muscular version of substantive due process to
protect a freedom of contract. Exactly.
They used it to strike down all sorts of state laws, maximum
hours, minimum wage. It was really about a judicial
distrust of progressive legislation.
So when the court abandoned Lochner, it was this huge move
toward judicial restraint in economic matters.
The court basically said, look, debates about the minimum wage
belong in the Legislature, not here.
So when you see a modern rational basis case on an exam,
you should immediately think this is the anti locker rule.
If it's economic, the court's going to uphold it.
The real action and substantive due process today is all about
those personal fundamental rights.
OK, so now let's make that shift you mentioned.
We're moving from protecting individuals from government to
managing the boundaries between governments.
This is all about the Supremacy Clause.
Federal law preempts contrary state law.
And preemption has two basic slavers, express and implied.
Let's start with express. That's when Congress just comes
out and says in the statute, we are preempting state law.
Right. But what's funny is that even
when it's explicit, the fight is never over.
The litigation just shifts to the scope of that preemption.
Did Congress mean to wipe out the whole field, or just this
one little corner of it? The courts spend a ton of time
trying to figure out what Congress actually intended.
And then there's implied preemption, where you have to
infer Congress's intent. And that breaks down into two
main types. The 1st is field preemption.
This is where Congress has legislated so comprehensively in
a particular area that you can just infer they intended to
leave no room for the states to act.
What are some classic examples of that fields where it's just
assumed to be all federal? The classic examples are areas
where the federal interest is just overwhelming.
Think foreign affairs, immigration, nuclear safety.
You know, if a state tried to pass its own stricter safety
rules for a nuclear power plant, that law would almost certainly
be preempted. Federal government has occupied
that entire field. The second type of implied
preemption is conflict preemption, and this one shows
up in 2 critical ways. First, you have impossibility.
This is the cleanest one. It's when it is physically
impossible to comply with both the state law and the federal
law. And for an exam you need to
remember that means literally impossible.
And this is where we have to talk about the drug labeling
cases. The difference between Wyeth and
PLIVA is such a high yield distinction.
It's a perfect example. In Wyeth, a brand name drug
maker was sued under state tort law for not having strong enough
warnings. The Supreme Court said the state
claim could go forward because federal FDA regulations actually
allowed the manufacturer to strengthen its label
unilaterally, so it wasn't impossible to comply with both.
But then came PLIVA, the generic drug case.
Right. And in PLIV, the court found
that generic manufacturers are under completely different
federal rules. Federal law requires their
labels to be identical to the brand name drugs label.
They are prohibited from changing it on their own.
So for them it actually was impossible.
It was a physical legal impossibility.
They couldn't comply with a state tort judgment demanding a
stronger warning because federal law forbade them from making
that change, so the state law was preempted.
The court itself even admitted the result makes little sense,
but felt bound by the technical regulation.
That's a huge point. The technical regulatory
structure creates a preemption shield for generics that brand
name drugs just don't have. It's a paradoxical result you
have to know. The second type of conflict
preemption is obstacle preemption.
This one's much broader, much murkier.
It's when a state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress. That sounds incredibly vague.
How are you supposed to spot an obstacle on an exam?
You have to look at the purpose of the federal law.
In Heinz, the court struck down a Pennsylvania alien
registration law because Congress had already passed a
comprehensive federal one. The court said Congress wanted a
single uniform national system, especially with World War 2
brewing, so the state law, even if it was trying to do the same
thing, was an obstacle to that uniformity.
It interfered with a national goal.
Exactly. The obstacle was non uniformity
itself. A modern example might be a
state trying to ban its government from contracting with
companies that do business in a certain country.
If that interferes with a federal foreign policy
objective, you have to identify the federal purpose first.
And we should quickly reiterate the presumption against
preemption. The starting point is always
that state police powers, health, safety, welfare are not
preempted unless Congress had a clear and manifest purpose.
That's the first sentence of your analysis.
But you also have to be aware, you know, that many scholars
think that presumption doesn't always carry the day in
practice. You have to be ready to argue
both sides. OK, so we've covered how federal
law limits state power. Now let's slip the whole thing
around. How does state sovereignty limit
federal power? And that brings us right to the
10th Amendment and the anti commandeering doctrine.
The core idea is that the federal government cannot
commandeer or order state legislatures to enact laws or
state executive officials to enforce a federal regulatory
program. This comes from huge cases like
New York, the United States and Prince VUS.
And Murphy VNC AA the sports gambling case really laid out
the justifications for this doctrine.
It gave 3 super clear rationales that are perfect for an essay.
They are fantastic points to make.
First, it protects liberty by keeping a healthy balance of
power. You know, it prevents all the
power from concentrating in Washington, DC 2nd and this is
the big one, it promotes political accountability.
Right, because if Congress forces a state to enact an
unpopular policy, who do the Vaders blame?
They blame the state officials, the governor, they're state
reps. The federal politicians who
wrote the law get to hide it. Totally warps the democratic
process. It lets Congress take credit for
popular ideas, but forces the states to take the heat and pay
the administrative costs. Precisely.
And that's the third justification preventing
Congress from shifting the cost of federal programs on to the
states. Now, Congress isn't powerless.
If it wants states to do something, it has constitutional
ways to get it done without commandeering.
What are its main tools? Well, the first is just straight
up preemption. Congress can use its Commerce
Clause power to regulate private actors, and if that displaces
state law, that's perfectly fine.
The 2nd and more common tool is the Spending Clause.
Congress can attach conditions to federal money to induce
states to adopt certain policies.
But, and this is a huge but, there's a limit, and that limit
was established in NFIB V Sebelius.
The Affordable Care Act case. This is where the court drew the
line between a permissible inducement and unconstitutional
coercion. What did the ACA do that crossed
that line? It was about the Medicaid
expansion. The law threatened to withhold
all of the state's existing Medicaid funding, which for some
states was 10 or 20% of their entire budget, if they didn't
agree to the new expansion. And the court said that was a
gun to the head. Exactly.
It left states with no practical choice.
It turned what was supposed to be a voluntary choice and
inducement into an unconstitutional command.
The key is that you can't threaten to take away huge
existing funds that states are already dependent on.
And there's one other way the federal government can regulate
states, right? The regulation of general
applicability. Correct.
The anti commandeering doctrine only applies when the federal
government is trying to regulate the state as a state.
It does not apply when Congress just even handedly regulates an
activity that both States and private actors are involved in.
So a federal law regulating databases can apply to state
owned databases just like it applies to privately owned ones.
So this all comes to a head in Murphy VNC AA.
The federal law passed PFA made it illegal for a state to
authorize sports gambling. And the court said that was a
direct command to the state legislature.
It was telling them what they could and could not legislate.
That's class classic unconstitutional commandeering.
But why couldn't the government just say it was preemption, that
they had preempted the field of authorizing sports gamble?
Because Murphy laid down a really clear two-part test for a
valid preemption. One, it has to be a valid
exercise of an enumerated power like the Commerce Clause, and
two, it has to regulate private actors, not the states
themselves. PCA failed that second part.
The anti authorization rule was only aimed at the state's act of
legislating. It didn't put any restrictions
on a private person, so it wasn't a valid preemption.
It was just an unconstitutional command.
And this reinvigoration of the anti calm deering doctrine has
created a potential problem for a much older federal law right
Public law 86 to 72. This is a really sophisticated
point, a great one for an exam. For decades, this law has
limited a state's power to tax an out of state seller if
they're only connection to the state is soliciting orders.
But then came the 2018 case, South Dakota View Wayfair, which
we'll get to later, But the short version is it said
physical presence is no longer required for a state to tax
someone. Exactly.
So post Wayfair, states now clearly have the sovereign power
to tax remote sellers based on their economic activity in the
state. So the argument now is that
Public Law 86 to 72 is no longer a valid regulation of commerce.
It's an unconstitutional command to the states telling them you
must refrain from exercising your sovereign taxing power.
It looks a lot like the command in Murphy.
It looks exactly like it, and it sets up this fascinating and, as
of now, unresolved constitutional showdown.
OK, let's pivot to the doctrine that police's state regulations
all on its own, the dormant Commerce Clause.
This comes from the idea that since Congress has the power to
regulate commerce, the states implicitly do not, especially
when it comes to discriminating against each other.
Right. Its whole purpose is to prevent
economic protectionism and keep a single, unified national
market. Again, you have to remember the
Lochner era context. Back then, the court used the
DCC really aggressively to strike down state laws it just
didn't like. But after the New Deal, the DCC
got a lot narrower. The modern doctrine is really
focused on rooting out discrimination.
And for your exam, you should think of the modern DCC as
having three analytical branches.
You have to figure out which branch applies because that
tells you what tests to use. Branch 1 is the anti
discrimination rule. This is the heart of the DCC.
It invalidates state laws that discriminate against out of
state goods or businesses, and that discrimination can be
facial right on the face of the law or it can be practical in
its effect. And because discrimination is
the cardinal sin here, the standard is the virtually per SE
rule of invalidity. It's basically strict scrutiny.
And the only way a state can defend A discriminatory law is
to show one, that it has a legitimate local purpose that is
not about economic protectionism, and two, that
there are no reasonable non discriminatory alternatives.
It's an almost impossible standard to meet.
The one case everyone points to is Maine V Taylor or Maine Band
imported bait fish. Right, and they won because they
proved the out of state fish had parasites that would have
devastated the local ecosystem and there was no other way, like
inspection to solve the problem. But that's a rare environmental
case, not an economic one. OK, Branch 2 is Pike balancing.
This applies when a state law is non discriminatory.
It regulates even handedly, but it still imposes an incidental
burden on Interstate commerce. The test here is whether that
burden is clearly excessive in relation to the putative local
benefits. This is a much squishier
balancing test, and the burden often comes from one state
having a weird outlier rule that messes everything up for
national companies. The perfect illustration of
this, even though it's not technically a Pike case, is Bib
V Navajo Freight Lines. Illinois decided to require
contoured mudflaps on trucks when pretty much every other
state required straight ones. So.
If you were a trucker, you'd have to literally stop at the
Illinois border and change your equipment.
Yes, it was a logistical nightmare, and the Supreme Court
struck down the law because the supposed local safety benefit
was tiny compared to the massive burden it placed on the free
flow of Interstate trucking. Finally, Branch 3 is the
extraterritoriality principle. This came from a line of cases
that struck down state laws that tried to directly regulate
commerce happening entirely outside their borders.
Specifically, these were price control or price affirmation
statutes. Yes, that's right.
A state would pass a law saying, for instance, that liquor
distillers couldn't sell their products in state for a price
any higher than the lowest price they charged anywhere else in
the country. It was a way for one state to
project its economic policy across the entire nation, which
is a big no no. And this principle was a mess.
Before the Ross case. The circuit courts were split on
whether it was a broad rule against any law with big out of
state effects or if it was just about these narrow price control
situations. That ambiguity is exactly why
the Supreme Court had to take up National Pork Producers Counsel
V Ross. OK, let's dive deep into Ross.
This is the case about California's Proposition 12,
which banned the in state sale of pork from pigs that were
confined in a cruel manner, essentially setting minimum
space requirements for the animals.
Right. And since California consumes a
ton of pork but produces almost none of it, the practical effect
was that pork producers in Iowa, North Carolina, all over the
country would have to change how they raise pigs if they wanted
to sell in the massive California market.
The pork producers challenge this not as discriminatory, but
under those other two DCC doctrines, extraterritoriality
and Pike balancing. Let's take the
extraterritoriality argument first, the producer said.
Look, this law is forcing us to completely reconfigure our farms
in Iowa just to sell a product in California.
That's an unconstitutional extraterritorial effect.
But the court unanimously rejected that broad argument.
Why? They basically said the old
extraterritoriality cases were all about preventing purposeful
economic protectionism. Like those price control laws,
they weren't a broad rule against any any law with
upstream effects. The key, the court said, is that
Prop 12 only regulate sales that happen inside California.
If an Iowa farmer doesn't want to comply, he just can't sell
his pork in California. The law doesn't reach out and
regulate his farm in Iowa directly.
So the big take away for your exam, the stand alone broad
extracurritoriality doctrine for non discriminatory laws is
basically dead. The analysis now has to go
through Pike balancing. Which brings us to the Pike
claim. In Ross, the producers argued
that the massive compliance costs, a nearly 10% increase at
the farm level, were a clearly excessive burden on the
Interstate pork market, especially when weighed against
California's moral, not economic, interest in animal
welfare. And this is where the court
fractured 6 Justices thought Pike was the right test, but
they still threw out the challenge.
So what happened? Well, the Gorsuch plurality
opinion really focused on the idea that the dormant Commerce
Clause protects the Interstate market as a whole, not
particular firms or particular methods of operation.
So they reasoned that yes, compliance costs would go up,
and yes, some producers who use conventional methods would be
hurt, but the national market for pork would survive.
The DCC, he argued, doesn't guarantee any company a right to
a specific business model or a certain profit margin, so the
challengers hadn't alleged A substantial burden on the market
itself. So just showing it's more
expensive to do business isn't enough, you have to show it's
disrupting the entire national market.
That's the new very high bar, of course.
The four dissenters, led by Chief Justice Roberts,
completely disagreed. They argued that forcing an
entire nationwide industry to change its production methods at
a cost of hundreds of millions of dollars is a substantial
burden on the market, not just on a few firms.
So for exam purposes, the bottom line is that the threshold for a
Pike claim is now incredibly high, especially when you're
challenging a state's health, safety or moral regulation.
The courts are going to be extremely differential.
One last thing on Ross. The dissent, led by Roberts flag
some other potential constitutional problems with
laws like this. He basically laid out a road map
for future challenges. This is great for an issue
spotting essay. What other clauses did he bring
up? He mentioned the import export
clause, the Privileges and immunities clause, and most
interestingly, the Full Faith and Credit clause.
His point on full faith and credit was that some states,
like Ohio, have laws that explicitly authorized the very
pig confinement practices that Prop 12 bans.
So you have a direct conflict. Can California, through its
sales ban, essentially refused to give effect to Ohio's
sovereign public act? It's a really novel and
fascinating question that we might see the court take up
next. OK.
Let's pull all of this together and apply it to the high stakes
area of state taxation. This is a classic exam topic
because it forces you to synthesize due process, the DCC,
all of it. Right.
And for any state tax question, your analysis has to start with
the four part test from the 1977 case Complete Auto.
A state tax is constitutional only if it meets all four
prongs. One, it's applied to an activity
with a substantial Nexus to the state, 2 it's fairly
apportioned, 3 it does not discriminate against Interstate
commerce, and four, it is fairly related to services the state
provides. Let's really focus on the two
trickiest parts, Nexus and apportionment.
OK, Nexus. For decades, the rule for sales
tax under cases like Quill was that a state could only tax a
business that had a physical presence in the state stores
where warehouses employees. This created a huge loophole for
online and mail order retailers. A massive loophole, and it was
based on this weird logic from Quill that even though a
business might have enough contact for due process
purposes, the Commerce Clause required physical presence as a
clear bright line rule to avoid burdening commerce.
A rule that became totally obsolete with the rise of the
Internet. Exactly, and that's why in 2018,
South Dakota V Wayfair completely overruled Quill.
The court said the physical presence rule was artificial and
anachronistic. The new rule is that economic
activity alone can create a substantial Nexus.
So if a remote seller meets a certain threshold of sales or
transactions in a stay, like South Dakota's $100,000 in sales
or 200 transactions, that is enough to establish a Nexus.
It was a revolutionary change. OK.
So that's Nexus. What about fair apportionment?
This is to make sure states don't tax more than their fair
share of a company's income. Exactly.
For a multi state corporation, states have to use a formula to
apportion that company's income. The traditional method is a
three factor formula based on the percentage of the company's
total property, payroll and sales that are in that state.
The goal is to only tax the income that's fairly
attributable to the economic activity happening within your
borders. OK, so now let's connect this
back to our DCC discussion. We know Pike balancing applies
to state regulations, does apply to state taxes.
Can a company argue a state tax is an excessive burden under
Pike? This is a huge point, and the
answer is a clear no. The Supreme Court has never used
Pike balancing to strike down a state tax that otherwise meets
the four complete auto requirements.
Your analysis for a tax must stay within the complete auto
framework. Why not?
I mean, a tax can definitely feel like a burden that falls
mostly on out of Staters. The court has given 2 main
reasons. First, on the issue of non
uniformity, like different states using different
apportionment formulas, the court has said the Constitution
is neutral. One state isn't responsible for
another state's tax system. If that creates a problem, it's
a problem for Congress to solve, not the courts. 2nd, on the
issue of the burden being externalized to out of satyrs,
the court draws a bright line. Taxes are not just a fee for
services, they fund the government as a whole.
And a court has no way to judge how much is too much tax.
Exactly. The court has explicitly said
there's no constitutional way to measure if a tax is excessive.
That is a fundamentally legislative political question.
If a tax is non discriminatory and fairly apportioned how high
it is, well, that's up to the voters and their
representatives. So bottom line for the exam, if
you get a state tax question, stick to the four prongs of
complete auto. Do not bring in pipe balancing.
We have covered a huge amount of ground here, moving all the way
from individual rights to the complex rules of commerce and
tax. Let's do a quick final recap.
The most critical things to remember first due process
procedural is the three Matthews factors.
Substantive is strict scrutiny for fundamental rights, rational
basis for everything else. Second, preemption.
Know the difference between field preemption and conflict
preemption, especially the two types of conflict impossibility.
Remember the YFPLIV paradox and obstacle, and always start with
the presumption against preemption. 3rd anti
commandeering. Know the three justifications,
liberty, accountability, cost and know the Murphy rule.
A valid preemption has to regulate private actors, not
just the state itself. 4th, the doorman Commerce Clause.
It's a decision tree. Is it discriminatory?
If yes, it's almost certainly dead.
If no, you apply Pike balancing, which has a very high
substantial burden threshold after Ross.
And remember, extraterritoriality is now a
very narrow doctrine. And finally state taxes.
Use the four part complete auto test.
Remember, Wayfair killed the physical President's rule for
Nexus and do not do not apply Pike balancing to attacks.
So when you step back, you see these two really interesting
trends. On one hand, the court in Ross
gave states a huge amount of power to regulate for local
health and moral reasons, even if it has big national effects.
That looks like a win for state police power.
But at the same time, you have the court affirming the state
score sovereign power to tax in Wayfair, only to see that power
immediately run into the revitalized anti commandeering
doctrine. Right.
And that potential vulnerability of a 60 year old federal law
like public law 86 to 72 after Murphy and Wayfair reminds us
that this whole balance of federalism is always in motion.
And it raises the final question for you to think about what
other long standing federal statutes which have been on the
books for years might now be vulnerable to an anti
commandeering challenge? What other federal laws out
there are really just telling states what to do instead of
regulating private citizens? A very provocative thought, and
exactly the kind of forward-looking analysis that
will set you apart on an exam. That's all for this deep dive.
Now go master that material. All right, future counselors,
welcome. Today we are going to build your
exam day toolkit for two absolutely critical
constitutional law doctrines. These are the ones that really
define that constant tug of war between federal and state power.
So let's start with this question.
Can Congress just tell a state what to do?
This really gets to the heart of state sovereignty, and it's the
core of the first doctrine we're going to tackle.
Think of it as the ultimate power play in our federal
system. And then on the flip side, what
about this? Can one state, say California or
Texas, pass a law that basically wrecks the national market for,
I don't know, pork or cars? This question sets the stage for
our second topic, a doctrine that's all about keeping our
national economy from shattering into 50 little pieces.
OK, let's dive in. Here is our road map.
For the next few minutes, we're going to cover the clash of
powers, the anti commandeering role, the dormant Commerce
Clause, that famous Pike test balancing test, a really
fascinating modern case, and then we'll wrap it all up with
your exam attack plan. We're moving fast, so let's get
to it. So at its core, everything we're
talking about today lives in the tension between two parts of the
Constitution. You've got the 10th Amendment on
one side, which says powers not given to the feds are reserved
to the states. And on the other side you have
the Commerce Clause, which gives Congress this massive power to
regulate commerce among the states.
The two doctrines we're covering live right in that
constitutional friction zone. All right, let's jump into our
first key rule. This is the one that says the
federal government can't just turn state governments into its
puppets. It's all about protecting the
states from being forced into federal service.
Here it is. This is the black letter rule
you need to have memorized. The federal government cannot
treat state legislators or state executive officials like they're
just field offices for DCA. Big reason for this is political
accountability. You know, if the feds want a
certain policy, they have to use their own agents and their own
money. That way we the voters know
exactly who to praise or who to blame.
And the doctrines evolution is really illustrated perfectly by
these 3 landmark cases. You absolutely have to know
these. 1st, in New York, the United States, the Supreme Court
said Congress can't force the state legislature to actually
enact a federal law. Then just five years later, in
Prince, they extended the rule. Now, Congress also can't press
state officials like local sheriffs into service to enforce
federal law. And then most recently in
Murphy, the sports betting case, the court took it even one step
further, saying Congress can't even prohibit a state from
repealing its own laws. It's a different flavor of
commandeering, but commandeering nonetheless.
So for your exam, the crucial point for issue spotting is
being able to tell the difference between a direct
command, which is unconstitutional, and a
permissible federal action. For instance, if a federal
minimum wage law applies to both state-run hospitals and private
hospitals, that's OK. That's a lot of general
applicability. And remember, Congress can
always use its spending power to persuade states with money like
highway funds, but it can't cross the line into coercion.
That's the key distinction. OK, so we've covered what
Congress can't do to the states. Now let's flip the script and
look at the limits on what states can do to each other's
commerce. This doctrine isn't actually
written in the Constitution, it's implied from the Commerce
Clause itself. The big idea here is that
because Congress has the power to regulate the national
economy, states can't just jump in and create their own little
protectionist schemes. It's what ensures we have one
unified national market, not 50 separate little economies with
walls around them. Now when you see a state law
that affects commerce on an exam, this is your framework.
It's a clean 2 step decision tree.
First you ask, is the law discriminatory?
Does it treat out of state companies or people worse than
the local guys? If it's discriminatory on its
face, it is almost always dead on arrival.
Think of that classic case City of Philadelphia V New Jersey
where Jersey tried to ban out of Only if the law is not
discriminatory do you then move on to Step 2, the balancing
test. OK, so let's drill down on Step
2, the Pike test. I call it the famous fuzzy test
because this is where the analysis gets really nuanced.
And honestly, it's where you can score some major points on an
exam by showing you get the subtlety.
And here's the holding straight from the Pike case.
The magic words for your analysis are clearly excessive.
This is a really high bar for a challenger to meet.
The court isn't just putting things on a scale and seeing
which is heavier. They're looking for a burden
that is way out of proportion to the local good.
And that's because of federalism, the idea that we
generally want to let states legislate for the health and
safety of their citizens as long as they don't completely crush
Interstate commerce while doing it.
So breaking it down like this makes the test a lot less scary.
On your exam, you have to walk through each of these steps.
First define the local interest. Is the state trying to protect
public health, animal welfare? Then you detail the burden.
Does it mess up supply chains? Does it force a whole national
industry to change how it operates?
And finally, you do the weighing and you make the call.
Is that burden clearly excessive?
So let's see how this classic kind of old school doctrine
actually applies today with a super recent, very high profile
Supreme Court case. OK, so this law was not
discriminatory on its face. It applied to California pig
farmers the exact same way it applied to farmers in Iowa or
North Carolina. And because of that, the whole
case got pushed into Pike territory.
The national Pork Producers argue that the burden on their
industry was absolutely massive. They also made this interesting
extraterritoriality argument, basically saying that California
was trying to control conduct that happens entirely outside
its borders. Because the California market is
so huge, they argued, this law effectively forces the entire
country to play by California's rules.
Now, here's where things get really interesting and frankly,
a little messy. If you're looking for a clear
rule, just look at how fractured the court was.
They upheld the law, but they did it for wildly different
reasons. Justice Gorsuch, writing for a
plurality, was just deeply skeptical of having judges try
to weigh a moral benefit like animal welfare against dollars
and cents. He thought, that's a job for
legislators, not the courts. Then you had Sotomayor and
Kagan, who said the pork producers just didn't even
allege a big enough burden to get the Pike balancing started.
But the dissenters, led by the Chief Justice, said, wait a
minute, this is exactly the kind of massive nationwide market
disruption Pike was designed to prevent.
This chaos really shows you just how contentious and difficult
the IC test is to alley in our modern, interconnected economy.
OK, let's bring this all home. Let's put this together into a
ractical framework that you can actually use when you sot these
issues on your final exam. All right, this slide right here
is your exam day CHEAT SHEET. The very first question you must
ask yourself when you read a fact pattern is who is acting?
Is it Congress or is it a state? That one question is the fork in
the road. It tells you exactly which
doctrine to apply and it will guide your entire analysis from
issue spotting all the way to your conclusion.
If you get that first step right, you are well on your way
to a great answer. So that pork producers case
leaves us with this big provocative question.
It really proves that these centuries old doctrines about
federalism and commerce are more relevant and more contested than
ever. Keep that in mind.
Good luck with your studies.