Constitutional
Law Class Notes
We
may have to reschedule two classes. How
shall we schedule them?
Finishing up Heald v. Engler
If
all we had to think about was the Dormant Commerce Clause and not the Twenty-First
Amendment, there would be no problem and this
would be an easy case. This statute
is not justifiable in the absence of the Twenty-First Amendment. It would clearly overextend the state’s
authority to regulate interstate commerce.
If there wasn’t a Twenty-First Amendment, the states could regulate
alcohol as far as health and safety go as long as the regulations don’t favor
local producers. For example, you could
ban all direct shipment without
regard to where the producer is based.
But any such regulation must be evenhanded.
The
only tricky issue is whether the Twenty-First Amendment exempts the states from
normal compliance with the Dormant Commerce Clause. This is an unanswered question that the Supreme
Court has waffled on in the past. In the
early years, the Supreme Court seemed willing to give the states a lot of
latitude, but in more recent years the Court scrutinized state laws in the area
more closely.
It
seems like the Supreme Court will soon have to enter this field again, given
that the Second Circuit and the Seventh Circuit are going one way while the Sixth
Circuit is going another way, we have the classic Circuit split, which cries
out for Supreme Court review.
In
the Sixth Circuit, they’re saying that the Twenty-First Amendment gives the
states safe harbor if they really have a good health or safety interest in
regulating alcohol. In that case, they
might not be subjected to strict scrutiny.
But the court doesn’t see that here, because they don’t perceive any
health or safety justification for the discrimination occurring here.
The
Second Circuit goes completely the other way.
They start with the notion that the state is operating within the Twenty-First
Amendment, and it must be proved that they are not acting within the Twenty-First Amendment.
Doran v.
Initially,
Alliant Energy
Corp. v. Bie
Is this
an easy case?
There
are three different challenges being brought in this case.
Utilities
have been historically considered “natural monopolies”. The idea is that only one company in each
state can successfully install electricity.
There
are three kinds of laws in this case. First
and foremost, there’s a law that says that the licensee must be a
The
next rule is that any holding company that owns a company that has a license also must be a
Finally,
there’s a takeover rule and other provisions.
The
first rule is found to violate the Dormant Commerce Clause, but the other two
are not.
What
if a company wanted to operate a hospital in the state of
Human
beings have a hard time getting incorporated.
If we live in
Foley
doesn’t care whether he’s right or we’re right.
What matters is that we’ve taken the time to see factually what’s going
on. We have made arguments using those
facts.