Constitutional Law Class Notes 2/16/04


Kassel v. Consolidated Freightways Corp. of Delaware


This case doesn’t state a current rule of law. There is no majority! But the current court is much more hostile to Dormant Commerce Clause claims than the court was twenty or so years ago. There is much less sympathy among the current court, or among the “federalist judges”, for saying a state law is invalid for violating the Dormant Commerce Clause. We don’t know what the justices would have done today under the facts of Kassel, but they might have been less sympathetic to Consolidated. So this is not a statement of current law.


The Iowa law set regulations for what trucks can go through the state. Double trucks that are 65 feet long can’t travel in Iowa. 55 foot long single trucks and 60 foot long doubles are allowed. There are some exceptions to this general rule. One exception is the fact that there are cities close to the edge of Iowa that can adopt the rule of the neighboring states. All neighboring states all 65 foot doubles. Iowa truck manufacturers can also get a permit to ship longer trucks or other vehicles out-of-state. There is also an exception for some farming equipment.


But let’s assume the rule is absolute. What is the nature of the claim that the trucking company is bringing to try to have that Iowa law struck down on Dormant Commerce Clause grounds? They argue that the law burdens interstate commerce.


Does it discriminate against interstate commerce? No, because nobody, including Iowa companies, can drive 65 foot doubles on Iowa roads. Consider the analogy to speed limits. In Michigan, the speed limit is 70 [corrected from 75]. Could we make the same argument if we were talking about a lower speed limit in Iowa than in neighboring states? Iowa residents would have to follow the speed limit too.


How would the truckers’ “burden” argument be translated to the speed limit rule? The truckers would say: “Hey! This unique speed limit law slows us down! We’re trying to get across the country with some goods. All the other states allow us to go 75 mph so we go quicker. When we get to Iowa, they slow us down and make us only go 65 mph! That costs more! It’s a burden on interstate commerce! We can’t get across the country as fast if we can’t go 75 mph. It can’t be that big a safety deal if all the neighboring states allow a 75 mph speed limit. Iowa’s law is an aberration!”


Note that the nature of this argument is different that discrimination. There is no argument about protecting local industry from out of state industry. They don’t argue that people out-of-state get a better deal than those who live in-state. The argument is that we have a national economy that depends on the movement of goods from coast to coast. If individual states have their own idiosyncratic laws, that will be a burden on the movement of goods through our interstate transportation system.


But why do they have to make the point that the 65 mph speed limit doesn’t have a safety purpose? It’s because states have the right to regulate their own highways in a non-discriminatory manner. States have the right to have speed limits, traffic signs, and so on. The federal government may create overarching rules with preemptive effect, but in the absence of congressional legislation, states have the right to regulate the use of their own highways.


Presumably, the trucking companies wouldn’t have a prayer of winning the speed limit case.


The plurality opinion basically says that there is no safety difference between a 65 foot double and either a 55 foot single or a 60 foot double. They think the measure doesn’t make sense as a matter of safety, whereas a different speed limit would have a better case for a legitimate safety measure. So the facts would be different if we were comparing 65 to 75 mph versus 60 to 65 feet.


Plus, it’s not like everyone agrees on the correct balance between safety and other social interests. There’s a difference between different policy judgments between states and the lack of a difference at all.


The real reason why Foley thinks the plurality would see the speed limit law differently than the feet-length law has to do both with the safety side and the burden side of the balance. The plurality finds that the burden on interstate commerce is much greater with respect to the “feet limitation” than with respect to the “speed limitation”. How come? A speed limit just slows you down a little bit. But if you have the 60 foot limit, you would have to either bypass the entire state or split the double into two singles.


For those justices who believe in the undue burden inquiry, not all laws will flunk the undue burden test. The tough thing to figure out is: Which “local burdens” are “undue burdens”? It all depends on the cost-benefit analysis in context.


UNDUE BURDEN INQUIRY??? How many justices believe?


Brennan will strike down the law based on discrimination, due to the improper motivation in the legislative history. Brennan and Rehnquist debate the use of legislative history. Brennan says you can only look to what they actually thought, but Rehnquist says you must credit what lawyers argue after the fact.


Also, Rehnquist and the plurality argue about the use of the “undue burden test”. Would Rehnquist actually find as a matter of fact that the 65 foot doubles are less safe than the 60 foot doubles? No. Rehnquist would leave it up to Congress. Rehnquist doesn’t believe that it’s the judiciary’s job to decide which kind of truck is safer. He doesn’t think it’s a factual issue for the trial court to be ruling on. The only question for the Court, according to Rehnquist, is whether this factual judgment of the Iowa legislature was plausible. That’s how the deference argument works. Rehnquist says it’s not his job to decide the factual issue. Instead, it’s the legislature’s job.


He supplements this basic point with the point about states from all around the country. Iowa is surrounded by states that allow longer trucks. That’s their right, but they don’t have to. But Iowa isn’t the only state that bans 65 foot trucks. If you really wanted to go from New York to California, you would have to switch around your trucks several times. Rehnquist believes that states should do what they want, and Iowa should not be held prisoner by the decisions of the surrounding states. Only Congress has the ability to preempt to promote interstate commerce. Each state must draw the line somewhere. Back in the 1960’s when Iowa adopted the law, most states only allowed 60 foot trucks.


Both opinions are pretty convincing. But the essential point is the deference point. Congress can say otherwise, but in the absence of congressional action, Rehnquist would let Iowa do what they want.


The plurality uses the veto of the governor as a small fact in the balancing test. It helps to show that there’s not much of a safety benefit because the governor didn’t think there was. On the other hand, Brennan makes the governor’s veto and its protectionist nature into a critical fact. He claims that the balancing test is unnecessary. The veto message and exceptions written in the rule prove, according to Brennan, that Iowa has a bad motive which is to hurt out-of-state trucking companies to benefit only Iowa residents. Helping people in-state while hurting people out of state is, according to Brennan, a classic Dormant Commerce Clause problem.


In response, Rehnquist says that this evidence is “too new”. The law was valid when written, and there is no obligation for Iowa to update it. The key point for Rehnquist is that we won’t strike down laws because of some bad mental state that some legislator or the governor had in mind. That’s because they could have passed the same law with a pure heart. Courts can’t invalidate laws because of a bad motive. Legislators could just go back the next day and reenact the same law while strenuously trying to think happy thoughts.


The important thing is the “triangulation”. Always remember that discrimination is the most important issue under the Dormant Commerce Clause. Ask yourself if you can make a discrimination argument. Then ask whether your argument depends on evidence of motive, or whether you can base it on the text of the statute itself or how it works in real life. However, because the law remains unclear, we can’t ignore the debate over the undue burden test. When we have a debate in an undue burden case, the most important things to look at are the real world facts that balance the burden with the benefit (e.g. safety). What is the non-discriminatory justification for the rule under attack?


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