Constitutional Law September 21, 2004

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Constitutional LawSeptember 21, 2004

• Horizontal Federalism
• Review Problems

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Overview of Problem 2

• Basic Facts
• State-Owned Gas Pipeline
• Differential Fee
• Federal Regulation
• Overta Barrel Lost Purification Business
• Issues
• DCC
• P I
• Preemption

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1. If Barrel filed suit under the dormant
Commerce Clause, which, if any, of the following
arguments should GRASP make? a. GRASP should
argue that the Commerce Clause does not apply
because GRASP does not buy or sell natural
gas. b. GRASP should argue that Barrel cannot sue
because corporations are not within the scope of
the dormant Commerce Clause. c. GRASP should
argue that the dormant Commerce Clause does not
apply because the pipeline is entirely within the
state of Gaugia. d. GRASP should argue that
owning a purification company is not a
fundamental right. e. None of the above.
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2. Assuming the fees are otherwise subject to
dormant Commerce Clause scrutiny, the best
characterization of the differential fees charged
by GRASP is that they are a. Facially
discriminatory for purposes of dormant Commerce
Clause analysis. b. Facially neutral for purposes
of dormant Commerce Clause analysis. c. Facially
neutral but discriminatory in practical effect
for purposes of dormant Commerce Clause
analysis. d. Facially discriminatory, but neutral
in practical effect for purposes of dormant
Commerce Clause analysis. e. Impossible to
characterize as discriminatory or neutral without
more facts.
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3. Assuming the fees are otherwise subject to
dormant Commerce Clause scrutiny, if Barrel wants
to argue that the burden of the differential fees
is exported to nonresidents, that argument
might be relevant to show a. That the fees are
discriminatory for dormant Commerce Clause
purposes, if the burden export is stark enough to
suggest gerrymandering. b. That the fees impose
excessive burdens on interstate commerce, if the
exported burden affects interstate trade and not
just the structure of the market. c. That any
claimed benefit to the state should be accorded
less deference by the court because the political
process was not a reliable check. d. All of the
above. e. None of the above.
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4. Assuming that GRASPs fees are otherwise
subject to dormant Commerce Clause scrutiny and
that the fees are discriminatory on their face
a. The court should find that there is a per se
violation of the dormant Commerce Clause. b. The
court should apply a form strict scrutiny to
determine whether the fees violate the dormant
Commerce Clause. c. The court should apply a
burdens-benefits balancing test to determine
whether the fees violate the dormant Commerce
Clause. d. The court should ask whether
nonresidents represent a peculiar source of evil
to determine whether the fees violate the dormant
Commerce Clause. e. The court should apply the
rational basis test to determine whether the fees
violate the dormant Commerce Clause.
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5. Assuming that GRASPs fees are otherwise
subject to dormant Commerce Clause scrutiny and
that the fees are not discriminatory a. The
court should dismiss the dormant Commerce Clause
claim. b. The court should apply the rational
basis test to determine whether the fees violate
the dormant Commerce Clause. c. The court should
apply a burdens-benefits balancing test to
determine whether the fees violate the dormant
Commerce Clause. d. The court should ask whether
nonresidents present a peculiar source of evil to
determine whether the fees violate the dormant
Commerce Clause. e. The court should apply strict
scrutiny to determine whether the fees violate
the dormant Commerce Clause.
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6. If GRASP asserts that it was acting as a
market participant and therefore was exempt from
dormant Commerce Clause scrutiny, Barrels best
response is that a. The discount for
purification in the state constituted a form of
regulation because it controlled a transaction
beyond the immediate market. b. The market
participation exception does not apply because
natural gas is a natural resource. c. The market
participation doctrine does not apply because
GRASP does not buy or sell natural gas. d. The
market doctrine should not apply because the
Trans-Gaugia pipeline has a monopoly and because
it displaced other pipelines. e. None of the
above.
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7. If GRASP defends the lower fees as a form of
subsidy, Barrels best response would be to a.
Drop the dormant Commerce Clause claim because
subsidies are completely exempt from dormant
Commerce Clause scrutiny. b. Argue that subsidies
are fully subject to dormant Commerce Clause
scrutiny. c. Argue that the subsidy distorts
interstate trade and therefore violates the
dormant Commerce Clause. d. Argue that the
subsidy is intended to assist local industry and
therefore violates the dormant Commerce
Clause. e. Argue that the combined effect of the
differential fees is more akin to a
discriminatory tax.
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8. If Barrel brings a claim under the Privileges
and Immunities Clause of Article IV, which of the
following arguments would not be a potentially
viable defense for GRASP? a. That there is no
fundamental right involved because gas
purification is not the pursuit of a calling. b.
That corporations have no rights under the
Privileges and Immunities Clause of Article
IV. c. That GRASP is acting as a market
participant, not a market regulator, because it
is selling the use of the pipeline. d. That there
is a substantial reason for favoring residents,
if the facts show that nonresidents are a
peculiar source of evil. e. All of the arguments
above would be viable defenses.
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9. If Barrel argues that the differential fees
are preempted by federal law a. The argument
should be successful because federal law has
occupied the field. b. The argument should
succeed if the fees are a form of safety
regulation. c. The argument should fail because
GRASP is a market participant. d. The argument
should fail if it is possible to comply with both
federal and state law. e. None of the above
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I. Overview of Problem 1

• Basic Facts
• State Tollway
• HazMat Surcharge
• In State Rebate
• Freelance Trucker from Out of State Sues
• Issues
• Dormant CC
• P I (Art. IV)
• Preemption

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II. DCC

• Presence of IC is easy
• Discrimination
• Facial
• Fee Rebate (West Lynn)
• Distinguishable?
• Other possibilities
• Obstruct flow
• Gerrymandering
• Intent to divert traffic

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C. Strict Scrutiny

• Legitimate Purpose?
• Safety is a legitimate interest
• Diverting risk is protectionist
• Narrowly Tailored?
• Less discriminatory alternatives
• Charge everyone the same
• Make highways safer
• Added risks from longer routes

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D. Balancing

• Burdens
• Obstructs flow (transportation case)
• Falls on interstate traffic (So.Pacific)
• Benefits
• PP Failure Deference
• Kassel plurality
• Rebate protects in state interests
• Safety offset/longer routes (So. Pacific)

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E. Exceptions

• Market Participation
• Selling(?) use of tollway
• Regulatory effect
• Not beyond market
• But purpose to affect routing
• Subsidy
• Permitted
• But West Lynn is a problem

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III. P I

• Apply?
• Not a corp.
• Discrimination
• Re fundamental right
• Calling
• Travel?
• Substantial Reason?
• Peculiar Source? (Risks w/o Tax Camden)
• Means?
• Underinclusive (all explosives are risky)
• LDA (equal fees)

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IV. Preemption

• No Express Provision
• Occupation of Field
• Occupied?
• Pervasiveness
• Dominant interest (uniformity)
• Purpose to occupy (balancing)
• Within field? (No route regs)
• Conflict
• Possible to Comply
• Obstacle to Purpose? (uniformity/balance)