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.
Conservation Force, Inc. v. Manning
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!
general, you’re not allowed to give your own resources just for your own
citizens. There is one free trade zone
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.
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.
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