Constitutional
Law Class Notes
“Differential
taxation” is considered different from a pure subsidy. Realize that the line between a subsidy and
tax exemption is a very slippery and murky line.
You
can hand stuff out to your own folks, but you can’t impose burdens and barriers
on other folks.
If
you have a real case in practice, hire an economist!
States
are trying, in general, to hide their protectionism. One of the early stages of the lawyering process in one of these cases is to expose the hidden protectionism. In the real world, there is plenty of time to
unearth all the relevant facts.
One
exception is the subsidy exception.
The
question of the market participation
exception is whether the state is acting like a regulator, or whether the
state is entering the marketplace as if it were just a business. If the state enters the marketplace as a
business, then its activities that favor in-state businesses are exempt from Dormant
Commerce Clause analysis. The state isn’t
using its sovereign power to engage in protectionism. Instead, the state is simply operating as a
company.
For
example,
Conservation
Force, Inc. v. Manning
The
How
can the
But
is there a non-discriminatory way for the state of
We
want to prevent Balkanization! The whole
concept of interstate commerce is that we’re one big country. States try to do this stuff all the time and
they need to get beaten down by the federal government!
In
general, you’re not allowed to give your own resources just for your own
citizens. There is one free trade zone
in
Foley
thinks the “remand” idea in this case is “for the birds”. Foley thinks that this opinion doesn’t add
up.
Foley
is worried because it says you can only get accredited for being a safe hunter
by going to one particular school.
It’s
hard to win strict scrutiny cases. One
case where the state did win was the Maine
v. Taylor case, AKA the “
Is getting
a license to hunt a subsidy? Is not giving a license a tax?
Be
able to formulate arguments on both sides.
Heald v. Engler
A lot
of intellectual resources have gone into attacking these rules that exist in
all the states: the importation of alcohol and the “three-tier” system (retail,
wholesale, manufacturers). In some
states, there can be direct sale to consumers of alcohol. But there is no direct sale to consumers from
out-of-state wineries. Wineries want to
sell wine on the Internet. They want to
cut out the “middlemen”. The states are
saying that they can’t do that. A lot of
lawyering has gone into making arguments on both
sides of the issue. A three-judge panel
in the Sixth Circuit says, unanimously: “You can’t do it!” But a three-judge panel in the Second Circuit
says, also unanimously, and before the same alcohol attorneys: “You can do it!”
No
matter what judges you get, you have to make your arguments and hope for the
best.
The
key to wine case is that if it were any commodity that wasn’t covered under the
Twenty-First Amendment, there would be no question of a violation of the Dormant
Commerce Clause. The state of