American Constitutionalism in Historical Perspective (packet)

Brennan: law is protectionist of in-state interests so it is unconstitutional without more.

Rehnquist: argues that s/n look at the record but look for acceptable reasons that might have been considered. Could a hypo rational legislature done this (rational basis review)? But this is not a deferential equal protection case, in neg CC cases need to look at actual purposes.

Import Restrictions: state restricting imports from other states, no movement of the item from state to state. If formally discriminatory and total ban will be struck down under Art. IV, sec. 2. Test for validity of state regulation under the CC

1. 
   Not an undue burden: on its face or in effect a total ban on interstate commerce.
   
2. 
   Legitimate State Purpose: protectionism isn’t enough
   
3. 
   Least Restrictive Alternative (most demanding level of scrutiny)
   
4. 
   Cases
   
   1. 
      Philadelphia v. NJ: NJ law prohibiting the import of waste. Higher level of constitutional scrutiny b/c it excludes those from other states, not just regulating activity. Have valid state purpose of health, environmental protection. But have highest level of undue burden =total restriction.
      
      1. 
         Least restrictive alt: May pursue this purpose but in a non-discriminatory way (cap on amt of waste deposited in NJ) strict scrutiny
         
      2. 
         Contrast with rationality w/ bite standard (reasonable purpose) of transportation cases. Here deeper intrusion so higher standard needed.
         
   2. 
      Dean Milk v. Madison, 1951: ordinance forbidding sale of milk not processed w/in 5 miles of Madison. Court strikes this down based on least restrictive alt analysis since this reg has the effect of limiting movement of milk interstate. Businesses have rt to open common mkts any regulations in this area amounts to a prohibition.
      
      1. 
         Suggests alternative regulatory schemes that d/n discriminate vs. interstate movement (could have had officials, standards, etc). Need to use other means even if more costly.
         
      2. 
         Criticism: naked policy making, doing what the legislature should have done. Preferring interstate movement over other values.
         
   3. 
      Hunt v. Washington State Apple, 1977: NC law requires that out-of-state apples be stamped with USDA labels that d/n have same standards as Washington. Court strikes this down, there are ways of pursuing this end without discriminating against Washington apples.