Fundamentals_Fernholz_1329. Introduction
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1 Fundamentals_Fernholz_1329 Introduction The dormant commerce clause doctrine, while not explicitly mentioned in the Constitution, stands for the proposition that, in the absence of federal regulation, state law may stand unless the state legislation in question benefits that state and burdens another state. This can either occur through (i) a statute that is facially discriminatory (for example, in Granholm v Heald, the relevant legislation prohibited direct sales by out-of-state wineries into the state, while permitting direct sales by in-state wineries), or (ii) a statute that prima facie does not appear to differentiate between two states, but that nevertheless has disparate effects on interstate commerce (Hunt v Washington). Textual arguments Against constitutionality On a purely textual reading of the Constitution, it is arguable that the dormant commerce clause doctrine should not even exist. Article I, Section 8 of the Constitution sets out the enumerated powers of the federal government, and one of these is to regulate commerce. However, in the absence of Congressional regulation, states should be able to make their own laws governing commerce, and this should arguably be one of the unenumerated powers reserved to the states (namely, allowing state governments to legislate where there is no federal legislation on the subject). This is in line with the principles of federalism, which resolves the problem of dual sovereignty between the federal and the state governments. Tellingly, it was argued by the state government in Granholm that the states have the power to make their own regulations concerning alcohol based on the 18 th and 21 st Amendments to the Constitution, but this was not accepted by the Court. Comment [whdf1]: This is an annotated version of the best answer to a Fundamentals of U.S. Law Essay question administered in the Summer of It is exceptionally good. Aspire to this level. Don t blame yourself if you think you won t write an answer this good. In my time at Berkeley Law, I never wrote an essay answer this good. And now I teach here. The answer has many headings, which I like. However, it is not necessary for students to write their essay in the form of a numerical list or an outline. The organization falls apart a bit toward the end but I expect that to happen, given the time limitations the writer had. Comment [whdf2]: This is a very good introduction. It is a bit long, and would have received full points even if it had been shorter. Comment [whdf3]: The following two paragraphs are accurate and well-written, but completely unnecessary to answer the question. The student received no points for this. A historical argument against constitutionality of the dormant commerce clause doctrine could be made based on the Federalist Papers. In Federalist 45 and 46, Madison wrote that there were hard limits on the power of the federal government to act, and that the powers of the federal government were few and defined and would be used in relation to external objects such as foreign affairs. In contrast, state power was much greater and would be used to protect the liberties and prosperities of the people. However, as demonstrated by McCulloch v Maryland, this argument is likely to have little force in modern times. For constitutionality A potential counterargument to the arguments above is that the necessary and proper clause of the Constitution (Article I, Section 8, Clause 18) allows Congress to execute any such laws as may be necessary and proper to give effect to the powers listed in Article I, Section 8. It is arguable that, in order to effectively regulate interstate commerce, the application of the dormant commerce clause doctrine is necessary (meaning merely convenient, useful, appropriate or essential McCulloch v Maryland) for a unitary centralized government, especially in light of its foreign affairs. Secondly, it could also be argued that the dormant Comment [whdf4]: Similarly, the paragraph below is unnecessary, and did not receive any points.
2 commerce clause doctrine is necessary in order to avoid economic Balkanization and to prevent ongoing low-level trade wars from being waged against each other by the states. In other words, this doctrine is necessary as a measure to prevent injustice between the states themselves and to avoid negotiations based on reciprocity. Case Law Application of balancing test in Hunt and Pike v Bruce Church In the present case, the proposed statute would require all potential consumers within North Carolina to make all in-person purchases of automobiles through dealerships, and they would not be able to purchase automobiles directly from the car manufacturer itself. Since the law would apply to all car manufacturers in the US, it appears to be a statute of general applicability. Similarly, in Hunt, the relevant statute mandated labeling of all containers of apples shipped into or within the state, and applied to both in-state and out-of-state apple growers. Despite the universal applicability of the statute to all apple growers within the US, the statute in Hunt was nevertheless held to be unconstitutional. The Pike v Bruce Church test which was applied in Hunt, which reflects the modern approach, should therefore presumably apply in this case as well since the proposed statute is not facially discriminatory. A balancing test from Pike and Hunt is applied in this context. Specifically, the three requirements that must first be met in order for the balancing test to apply include: (i) the statute is not facially discriminatory, (ii) there is a legitimate local purpose and (iii) the impact on interstate commerce is merely incidental. If these three conditions are fulfilled, then these will be balanced against (i) the nature of the local interest, and (ii) whether that local interest could be promoted in alternative ways that would have a lesser impact on interstate commerce. 1. Is the statute not facially discriminatory? a. Yes, as mentioned above, the statute applies to all car manufacturers, regardless of where they are based. Comment [whdf5]: I award points for this. The test for facially discriminatory legislation does not apply to this case. Comment [whdf6]: I award points for analogizing to a similar case that we studied in class. Comment [whdf7]: Not a perfect rule statement it doesn t specify what we balance the local interests against but very, very close. Comment [whdf8]: Very good that the author did not spend much time on this easy point. 2. Is there a legitimate local purpose? a. According to Senator Tom Apodaca, the proposed law is intended to prevent unfair competition between manufacturers and dealers, as car manufacturers could undercut the competition of independent dealers by refusing to sell to them or selling at an inflated price. Further, it is mentioned that car manufacturers have no ties to North Carolina and are unlikely to support local communities, whereas dealerships are often beneficial for local businesses. It could potentially be argued that the latter reasoning is slightly more tenuous and weaker than the rationale that was argued in Hunt (namely, the avoidance of confusion arising from a multiplicity of labeling standards), as there are surely many entities within a state that do not contribute to local charities, and this should not be considered good cause to ban such entities from the state entirely.
3 Nevertheless, the threshold does not seem unduly difficult to satisfy, and it is likely that a court would find that legitimate local purposes do exist here. 3. Is the impact on interstate commerce merely incidental? a. Since North Carolina does not have any automobile manufacturing facilities, and no automobile manufacturer is based in North Carolina, it would seem that the impact on interstate commerce would, prima facie, be merely incidental. However, since Tesla has planned to open a showroom in North Carolina, the impact may be more far-reaching than was apparent. As Tesla has only sold 80 cars in North Carolina through online orders thus far, it would also be helpful to know whether other car manufacturers are facing a similar problem as that faced by Tesla in this situation. Comment [whdf9]: Note that the writer analyzes both sides of the issue, and then provides her own opinion. I agree with her. These are legitimate local purposes, though the writer should and does argue below that the legislation probably doesn t well serve those legitimate local purposes. Comment [whdf10]: Again, the writer argues both sides, and then indicates where additional information would be useful. If these three requirements are fulfilled, a court would then apply the balancing test to determine whether the statute is constitutional. 4. What is the nature of the local interest? a. The local interest, as mentioned in (2) above, involves preventing unfair competition between manufacturers and dealers within the state, and protecting local communities and charities through donations from dealerships. 5. Could the local interest be promoted in alternative ways that would have a lesser impact on interstate commerce? a. The fact that this law is modeled after laws in many other states in the United States, including Texas, is a strong indication that there may be no equally effective alternatives that would have a lesser impact on interstate commerce, as other states have adopted a similar approach. However, in contrast, North Carolina and all other states permit direct manufacturer sales of other goods for example, Apple sells computers directly to consumers online and through its own showrooms. A court is likely to question why this should not be the position in relation to automobiles as well. The disparity in treatment of these goods may be evidence of a protective economic motive in this case. It should also be noted that in Hunt, Justice Scalia criticizes the balancing test based on the idea that weighing such considerations involves weighing totally incommensurate items. Therefore, the possibility of similar criticism by the court does exist. Comment [whdf11]: No need to repeat. The writer could have cut this. Instead, the writer should have focused on why the local interests are so weak. The writer does so two paragraphs below, and thus gets credit. Comment [whdf12]: Not needed. Which is the stronger argument? In my opinion, the genuine local interest arguably seems to be aimed towards protecting independent dealerships in the state, despite the purported reasons given by the Senator in (2)
4 above. This could be construed as quite similar to the Hunt case, where the court mentioned the possibility that the statute was merely intended to have a protective economic effect on the state s apples. Here, it could similarly be argued that North Carolina is merely attempting to protect its own independent dealerships and stifle competition from out-of-state manufacturers such as Tesla. This possibility is enhanced by the fact that dealers make much of their money on maintenance and repair that occurs for months or years after the sale of the car, whereas electric cars such as those made by Tesla are more reliable and would rarely require maintenance and repair. However, also as mentioned in Hunt, the application of the balancing test is useful because it avoids the necessity of having to find such economic motives behind state action. In the present case, while the statute is not facially discriminatory, does seem to have a legitimate local purpose, and would (possibly) have only an incidental impact on interstate commerce, I would argue that the other two factors would outweigh these three considerations. In relation to the Senator s first argument that the statute is intended to prevent unfair competition between manufacturers and dealers, there are surely other alternatives that do not create such a blanket ban on automobile manufacturers owning dealerships in North Carolina. A state statute could instead seek to address and regulate the specific practices between manufacturers and dealers in relation to unfair competition laws. This would be much more tailored and limited in scope and application, in contrast with the far-reaching impact of the current statute. The second argument regarding the fact that car manufacturers are unlikely to support local communities and businesses, unlike car dealerships, seems to be quite a weak argument. As there are no existing automobile manufacturers in North Carolina, an automobile manufacturer setting up business and selling cars in the state would not change the status quo if it fails to contribute money to local causes. In any case, there are alternatives to the current statute that would have a lesser impact on interstate commerce. For example, allowing manufacturers to sell cars in North Carolina and providing tax breaks and incentives for charitable donations to local causes would ensure that local communities are benefited by the presence of such manufacturers. Consequently, despite the fact that other states have similar laws, I am of the opinion that the balancing test would not be satisfied by the arguments of the Senator and the dealers, and would prefer a finding that the statute is unconstitutional. If statute is held unconstitutional If the statute is held unconstitutional, North Carolina dealers may be able to seek recourse through the legislative system by virtue of the fact that automobile dealers are generous contributors to the election campaigns of state officials. By choosing to spend or withhold their contributions, the North Carolina dealers would be able to influence legislators in Congress to legislate in their favor. Because of the semi-constitutional status of state laws in the specific Comment [whdf13]: Points for this. Note the use of the facts provided in the essay question. Comment [whdf14]: Here the writer discusses alternatives, another aspect of the rule. Points given for this, even though the alternative suggested is rather abstract. Comment [whdf15]: The writer misunderstands the issue a bit, but I give credit for the attempt to apply the balancing test. Comment [whdf16]: Here s a good alternative! Points. Comment [whdf17]: A nice description of the semi-constitutional nature of Dormant Commerce Clause Doctrine.
5 context of the dormant commerce clause doctrine, Congress may be able to override state authority on the subject however, this would also impact all other similar state statutes in relation to this matter. Comment [whdf18]: This is correct, but a bit off the point. The writer may have intended to say federal court authority.
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