Constitutional Law Class Notes 2/19/04


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. Massachusetts Turnpike Authority


Initially, Massachusetts says they will do this just for their own residents and not for those from other states, but then they change their mind.  The only way the plaintiffs can win is by suggesting that the state had a bad motive initially.  This is more or less an easy case.


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 Wisconsin company.  The company that actually runs the power plant must be a Wisconsin-incorporated company.


The next rule is that any holding company that owns a company that has a license also must be a Wisconsin company.


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 Ohio, but it was an out-of-state business.  Ohio gets nervous about having an out-of-state business run a hospital in the state of Ohio.  Maybe there is a law against having for-profit companies running hospitals.


Ohio can force people to take the Ohio bar.


Human beings have a hard time getting incorporated.  If we live in Kentucky, we would have to move to Ohio.  Becoming an Ohio company isn’t that big a deal.  There is no obligation that the shareholders live in the state.


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.


Back to Class Notes