Law Commons^™

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone

Michigan Business & Entrepreneurial Law Review

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer …

The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd

Michigan Journal of Environmental & Administrative Law

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose …

The Most Revealing Word In The United States Report, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch

Michigan Law Review Online

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time. One area where the Court has continued to wield considerable power, however, has been in the context of state taxes. Specifically, the Court has continued to restrict states' power to compel out-of-state vendors to collect their sales and use taxes based on a physical-presence "nexus" rule. That rule dates back to the …

The Gibbons Fallacy, Richard A. Primus

Articles

In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …

The Constitutionality Of California's Cap-And-Trade Program And Recommendations For Design Of Future State Programs, Thomas Alcorn

Michigan Journal of Environmental & Administrative Law

Global climate change has emerged as one of the greatest challenges of our time. While action has stalled on the national stage, states have started to take action to reduce their greenhouse gas emissions. Confronted with the risk of severe impacts that could cost it tens of billions of dollars annually by the end of the century, California has taken the lead and developed the first comprehensive cap-and-trade program in the nation and seeks to achieve significant reductions in the greenhouse gas emissions associated with its economy. The success of California’s program will determine whether other states and the federal …

The Dormant Commerce Clause And California's Low Carbon Fuel Standard, Kathryn Abbott

Michigan Journal of Environmental & Administrative Law

California’s Low Carbon Fuel Standard (LCFS), enacted as part of the State’s pioneering Global Warming Solutions Act (AB 32), purports to regulate the amount of carbon emissions associated with fuels consumed in the state. Part of this scheme involves assigning numeric scores to vehicle fuels reflecting the amount of carbon emissions associated with their production, transportation, and use. The scores are part of a “cap-and-trade” scheme to lower the state’s total amount of carbon emissions associated with fuel use. Out-of-state industry groups brought a challenge in the United States District Court for the Eastern District of California, alleging that the …

Discarding The North Dakota Dictum: An Argument For Strict Scrutiny Of The Three-Tier Distribution System, Amy Murphy

Michigan Law Review

In Granholm v. Heald, the Supreme Court held that states must treat instate and out-of-state alcoholic beverages equally under the dormant Commerce Clause and established a heightened standard of review for state alcohol laws. Yet in dictum the Court acknowledged that the three-tier distribution system-a regime that imposes a physical presence requirement on alcoholic beverage wholesalers and retailers-was "unquestionably legitimate." Though the system's physical presence requirement should trigger strict scrutiny, lower courts have placed special emphasis on Granholm's dictum, refusing to subject the three-tier distribution system to Granholm's heightened standard of review. This Note argues that the dictum should be …

Chopping Down The Rainforest: Finding A Solution To The "Amazon Problem", Eric Andrew Felleman

University of Michigan Journal of Law Reform Caveat

Current economic conditions in the United States have led to a dramatic decrease in state tax revenue. Without these funds, states will be unable to support important public services, and hundreds of thousands of jobs in the public and private sectors are at risk of being cut, as states work to close $103 billion in budget gaps. Accomplishing that will involve overcoming many hurdles, such as the unpopularity of raising taxes during times of economic trouble, but one largely untapped source could provide a significant amount of income to states. States currently lose around $23 billion annually in uncollected use …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson

Michigan Law Review First Impressions

The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos

Michigan Telecommunications & Technology Law Review

In the last decade of the 20th Century, more than 200 years after the first Copyright Act of 1790, the rights of copyright owners have increased relative to those of the public. The Visual Artists Rights Act of 1990 provided a limited right to visual artists to control their work; even after sold, limiting first use rights. The first copyright act had a 28 year term; in 1998, the term of copyright was increased to the life of the author plus 70 years. The Digital Millennium Copyright Act (DMCA) of 1998 dramatically shrank the fair use rights provided under 17 …

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

A Government Of Limited Powers, Carl E. Schneider

Articles

Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …

Constitutional Purpose And Inter-Clause Conflict: The Constraints Imposed On Congress By The Copyright Clause, Andrew M. Hetherington

Michigan Telecommunications & Technology Law Review

The argument that the preamble of the Copyright Clause provides a strict constraint on congressional intellectual property legislation has met with broad support among legal academics, but it is viewed with some skepticism by the judiciary. The Supreme Court did acknowledge in Eldred that intellectual property legislation must, in at least some sense, promote the progress of science, but stressed that it is for Congress, not the courts, to decide what does and does not promote progress. The Court specifically rejected a "stringent" form of rational basis review for Copyright Clause enactments proposed in Justice Breyer's dissent, noting that the …

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

The Sometimes-Bumpy Stream Of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman

Articles

The title of this essay is a somewhat feeble use of an unoriginal pun.' I am not talking about the doctrine of the stream, but about the stream of the doctrine. That is, my principal subject is not the "stream of commerce doctrine," but rather the historical development of the doctrine governing Congress's power under the Commerce Clause in the twentieth century, and especially in the years centering on the New Deal. My basic thesis is this: Although the doctrine developed rapidly in the New Deal era, there were no major discontinuities in it. That does not mean that it …

"Charting The Course Of Commerce Clause Challenge (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman

Articles

Recognizing Barry Cushman's formidable skills in both research and argument, and his enormous wealth of knowledge, I have long known that I would much rather be on the same side of an issue with him than on the opposite side. And I am glad that we have been on the same side of an important issue, for both of us doubt that Franklin Roosevelt's Court-packing plan had much to do with the constitutional transformation of the 1930s. But now I have expressed disagreement with some propositions he has asserted, and I have made some assertions with which he disagrees, he …

Dissing Congress, Ruth Colker, James J. Brudney

Michigan Law Review

The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a total of twenty-nine cases since the 1994-95 Term. Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as solicitous of …

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …

A Commerce Clause Challenge To New York's Tax Deduction For Investment In Its Own Tuition Savings Program, Amy Remus Scott

University of Michigan Journal of Law Reform

The Internal Revenue Code provides guidelines for states to create and maintain college tuition savings programs which offer federal tax benefits to investors. Several states have enacted tuition savings plans in accordance with these guidelines. In addition to the federal tax benefits allowed, New York offers a state tax deduction to New York residents who invest in its plan, the New York College Choice Tuition Savings Program. New York does not offer the deduction, however, to residents who invest in comparable programs offered by other states. The tax deduction thus creates an incentive for residents to invest in the in-state …

Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser

Michigan Law Review

Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the …

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle

Michigan Law Review

The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils - the Delhi sands - that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less …

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez

Enumerated Means And Unlimited Ends, H. Jefferson Powell

Michigan Law Review

United States v. Lopez can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990, along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce.

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? …

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

The Dormant Commerce Clause And State-Mandated Preference Laws In Public Contracting: Developing A More Substantive Application Of The Market-Participant Exception, Benjamin C. Bair

Michigan Law Review

This Note argues that the current focus on the relationship between states and their local governments as the key determinant of the constitutional validity of state-mandated preference laws is flawed. Instead, a court considering the validity of a state-mandated preference law should uphold such a law only if it distributes the benefits of state expenditures to state residents and does not excessively burden interstate commerce.