Constitutional
Law Class Notes
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
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
Does
it discriminate against interstate
commerce? No, because nobody, including
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
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
He
supplements this basic point with the point about states from all around the
country.
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
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
In
response, Rehnquist says that this evidence is “too new”. The law was valid when written, and there is
no obligation for
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?