rustyyoda wrote:Does anyone have a good attack plan for dormant commerce clause questions? Struggling real hard right now. Our prof laid it out as a 3 category system (facially discriminatory laws, facially neutral laws with even effects, and facially netural laws with uneven effects). I'm just not sure where to go with it from there, or what to talk about before getting to that point.
That's literally it bro.
Stage 1. Discriminatory State Purpose Inquiry: Does the measure have an underlying purpose (whether facial or hidden) to discriminate economically against out-of-staters?
a. if Yes, measure is absolutely per se invalid and struck down –inquiry is ended.
b. If No, go to Stage 2 Balancing.
Stage 2. Balancing
a. Inquiry: Is measure discriminatory on its face?
i. If Yes, measure is heavily presume invalid (Test: for measure to survive, state has heavy burden of proving the measure is almost certain to achieve its legitimate purpose, and that the purpose cannot be served as well by available less-discrimnatory means (similar to “strict scrutiny”)).
ii. If NO, go to b.
b. Inquiry: Is the measure discriminatory in effect?
i. If YES, measure is presume invalid. (Test: for measure to survive, state has burden of proving that the measure is likely to achieve its legitimate purpose; challenger then has the burden of either rebutting the state’s justification or showing that the purpose can be served as well by available less-discriminatory alternatives (similar to a cross between “strict scrutiny” and “intermediate scrutiny”)).
ii. If NO, go to c.
c. Inquiry: Is the measure evenhanded in effect?
i. If YES, measure is presumed valid. (Test: challenger has burden of proving that the measure’s burden on interstate commerce is clearly excessive in relation to state benefits (similar to “rational basis”)).
d. Inquiry: Is the state a market participant?
i. if YES, measure is valid, despite DCC analysis above.
ii. If NO, measure is valid/invalid determined by DCC analysis above.