Justice Curtis, in Cooley v Board of Wardens (1851) outlines the case for recognizing, as a constitutional matter, zones of exclusive federal authority over commerce and other zones of concurrent state and federal authority. Cooley, upholding a Pennsylvania law requiring that vessels entering Philadelphia harbor use of local pilots, applies a balancing test to judge the validity of the regulation.
Baldwin v G. A. F. Seelig (1935) invalidated a New York law prohibiting the sale in the state of New York of milk bought outside of New York. New York argued the law was necessary to avoid price competition that would drive dairies into producing less wholesome milk. The Court, more realistically, saw the law as protectionist. Justice Cardozo wrote that when "a state tries to isolate itself economically" it must show an important interest for doing so and that it had no less discriminatory mean open for accomplishing its goal. Cardozo's test has become the standard test for evaluating state laws that discriminate against out-of-state commerce.
In another New
case, H. P. Hood and Sons v Dumond (1949), the Court applied
test for protectionist laws to the state's denial of a license to
a depot to collect milk for distribution to Boston. The Court saw
the license denial as an effort by New York to horde a resource and
keep prices for its consumers low.
Dean Milk Co. v Madison (1951) deals with discrimination against out-of-state (as well as much in-state) commerce not by a state, but by a city. At issue in yet another milk case was a Madison, Wisconsin ordinance that prohibited the sale of milk in Madison that was bottled more than five miles from the city's center. The ordinance was justified by Madison as necessary to facilitate inspection by city dairy inspectors. Finding the ordinance discriminatory and believing that reasonable non-discriminatory alternatives existed, the Supreme Court invalidated the ordinance despite the fact that a Milwaukee dairy was shut out of town just as much as one from Illinois.
Edwards v California (1941) considered a challenge to a California law aimed at reducing the influx of dustbowl indigents to the state. The California statute made it a crime to bring into the state any indigent non-resident. Finding people in this case to be "articles of commerce," the majority found the statute to be a form of unconstitutional discrimination against out-of-state commerce. (Four concurring justices would have preferred to invalidate the law on 14th Amendment privileges and immunities grounds.)
In Philadelphia v New Jersey (1976), the Court struck down a New Jersey law that prohibited the importation of garbage into the state. Concluding that garbage was "commerce," the Court viewed the law--despite its environmental justification--as unconstitutional discrimination agains out-of-state commerce. The Court held that as long as reasonable, non-discriminatory alternatives exist that serve the states legitimate interests, they must be used instead of a discriminatory ban.
In Hughes v Oklahoma (1979), the Court invalidated an Oklahoma law prohibiting the interstate transportation of minnows taken from Oklahoma waters. The Court rejected Oklahoma's law that states "own" wildlife and therefore wildlife is not "an article of commerce." The law could be upheld only if the state could show it served a significant local interest that could not be furthered by a non-discriminatory law--this Oklahoma could not show.
(1986) is a rare example of a Supeme Court decision upholding a state
that discriminated against out-of-state commerce. The Court
the trial court's findings that no non-discriminatory alternatives to
ban on the importation of live baitfish adequately served the state's
in preventing the introduction into Maine waters of new parasites and
fish species that might upset Maine's ecosystems.
In Hunt v
State Apple Ass'n (1977), the Court determined that a North
law that allowed only one grade (the U. S. Dep't of Agriculture's
to be placed on containers of apples sold in the state.
State Apple Ass'n contended that the law discriminated against
apples which are shipped in containers that include its own tougher
grades. Concluding that a discriminatory effect (not a
intent) is all that is necessary to trigger the Baldwin test of a
state interest and no non-discriminatory alternatives available, the
invalidated North Carolina's apple-grading law.
In the consolidated cases of Granholm v Heald and Swedenburg v Kelly, involving
challenges to Michigan and New York laws respectively, the Supreme
Court considered whether the 21st Amendment gave states the power to
discriminate against out-of-state liquor distributers in ways that
would otherwise clearly violate the Commerce Clause. In its 2005
decision, the Supreme Court, on a 5-4 vote, found that state laws that
prohibited out-of-state wineries from selling wine over the Internet
directly to consumers violated the Commerce Clause. The four
dissenters interpreted Section 2 of the
21st Amendment as giving broad
authority to states to ban such sales. [LINK to Swedenburg
Estate Vineyard website]
Co. v Arizona
(1945) demonstrates that state laws might violate the Commerce Clause
when in-state and out-of-state commerce are treated equally. The
case involved a challenge to Arizona's law prohibiting trains from
the state that contained more than 70 freight cars. Southern
complained that the law required them to choose between disassembling
the Arizona border larger trains, making two runs across the state, and
then reassembling the trains or avoiding Arizona altogether.
argued the law was a safety measure designed to minimize the risk of
action" accidents to which longer trains are susceptible. The
applied a test that balanced the state's safety interest against what
saw as the very substantial burden the law imposed on interstate
The law was struck down. The same test was used in 1959 to strike
down an Illinois law requiring trucks to have contoured rear fender
rather than the straight mud guard flaps required by most other states
(Bibb v Navajo Freight) and in 1978 to invalidate a Wisconsin
that limited truck length to 55 feet at a time when most long haul
lines had gone to 65 foot trucks (Raymond Motor Transportation v Rice).
In United Haulers Assoc. v Oneida-Herkimer
Solid Waste Management Authority (2007), the Court, by a vote of
6 to 3, upheld a New York law that required trash haulers in a region
to deliver their waste to a county-owned waste treatment
facility. Justice Roberts, writing for the Court, concluded that
the law not discriminatory because it did not favor a private in-state trash facility,
but rather a government-owned facility, and therein lies a
constitutional difference. The burden of the "flow control" law,
in the form of more expensive trash service, falls on in-state
residents and could not be seen as an attempt to shift costs to
out-of-state businesses. Because the law was deemed
non-discriminatory, the Court applied its balancing test and found that
the local benefits of the law (effective financing of waste disposal
and increased recycling) outweighed the abstract harm on out-of-state
businesses of removing waste processing services from the national
Our last two cases deal with the "market participant" exception to Commerce Clause analysis. In Reeves v Stake (1980), the Court considered South Dakota's preference for selling cement from its state-owned Dacotah Cement plant to South Dakota customers. Concluding that South Dakota was acting as a market participant rather than as a regulator of commerce, the Court upheld the state's preference for in-state customers. Reeves was distinguished in South-Central Timber Development Inc v Wunnicke (1984), which invalidated Alaska's policy of insisting that high-bidders on state-owned timber agree to process some of the timber they purchased at Alaskan sawmills. The Court saw the bidding rules as an attempt to control commerce "down the stream," and that therefore the state was acting as a regulator, not as a mere market participant.
Harbor of Philadelphia in the 1840s
Cooley v Bd. of Wardens (1851)
Edwards v California (1941)
Philadelphia v New Jersey (1978)
Hughes v Oklahoma (1979)
Maine v Taylor (1986)
Hunt v Wasington State Apple Advertising Comm'n (1977)
Discrimination Against Out-of-State Commerce: Different Rules for Liquor?
(Power of States Under 21st Amendment)
Granholm v Heald/ Swedenburg v Kelly (2005)
Neutral Laws: The Balancing Test
the Commerce Clause outlined in the introduction makes the most