#Dormant Commerce Clause

[ashleywarrenbrandt]

Washington Court Tries to Sidestep Granholm in Out-of-State Distiller Fight

In an opinion that will likely not stand for long, the U.S. District Court for the Eastern District of Washington in Shady Knoll Orchards & Distillery v. Vollendroff handed down a ruling (link to opinion) denying dormant Commerce Clause claims that bear a striking resemblance to the facts and issue under the Supreme Court’s decision in Granholm v. Heald, but decided to rely on the recent Day v.…

[queenboimler]

It's officially at that point in the summer where the recent law graduates are all crashing out over bar prep </3

[beardedmrbean]

A federal judge on Wednesday blocked California’s attorney general from enforcing a new law that allows residents, the state and local governments to sue members of the firearms industry that manufacture or sell “abnormally dangerous” guns.

U.S. District Judge Andrew Schopler in San Diego sided with a firearms industry trade association in finding that part of a gun control measure signed into law by Democratic Gov. Gavin Newsom in 2022 was likely unconstitutional.

That law, the Firearm Industry Responsibility Act, was enacted shortly after the conservative-majority U.S. Supreme Court issued a landmark ruling in June 2022 concerning the U.S. Constitution’s Second Amendment that significantly expanded gun rights.

Newsom, in signing the new state firearms restrictions into law in July 2022, called them necessary to ensure makers of deadly firearms could be held accountable in court and could “no longer hide from the mass destruction that they have caused.”

But in a lawsuit filed in May, the National Shooting Sports Foundation (NSSF) argued California’s restrictions violated several provisions of the U.S. Constitution including the Second Amendment, which protects the right to keep and bear arms.

Schopler, an appointee of Democratic President Joe Biden, did not address the Second Amendment issue in Wednesday’s ruling and instead found the law likely violated the Constitution’s so-called dormant Commerce Clause, which restricts states from interfering with interstate commerce.

For example, he said, a Tennessee company that manufacturers guns that are legal in its state but that meet California’s definition of “abnormally dangerous” could still face liability under the law even its products were shipped to nearby Arizona and used later to commit a crime in California.

“Because the ‘abnormally dangerous’ firearm rule reaches beyond California’s borders and directly regulates out-of-state commercial transactions, it likely runs afoul of the dormant Commerce Clause,” Schopler wrote.

He issued a preliminary injunction barring California Attorney General Rob Bonta, a Democrat, from suing NSSF’s members while the lawsuit moves forward. Bonta’s office did not respond to a request for comment.

Lawrence Keane, the NSSF’s general counsel, in a statement welcomed the ruling, saying the law “attempts to use the real threat of liability on commerce beyond California’s border and impose its policy choices on other states.”

The judge dismissed other parts of NSSF’s lawsuit challenging other provisions of the law, citing a lack of standing, though he allowed NSSF to amend its complaint to try to address those issues.

[mystlnewsonline]

Missouri Attorney General - Fighting for Pork Producers

Missouri Attorney General Bailey Joins 13 State Coalition Fighting for Pork Producers JEFFERSON CITY, MO (STL.News) Missouri Attorney General Andrew Bailey announced Friday that he joined 12 states in challenging Massachusetts’ pork ban.  The amicus brief opposes the new law, Question 3, that prohibits states from selling or shipping pork through Massachusetts if they do not meet burdensome hog-housing requirements. “I will always fight to protect Missouri farmers, and that includes the pork industry that is critical to the success of our state,” said Attorney General Bailey.  “I will not stand idly by while rogue progressive activists in Massachusetts attempt to hamper the ability of Missouri farmers to raise their hogs.” Massachusetts’ pork ban goes even further than California’s similar Proposition 12 by prohibiting the shipment of “non-compliant” pork through the state.  Even if Missouri-produced pork meets all state and federal safety and quality standards, it cannot be sold in or even transported through, Massachusetts if it does not also comply with Massachusetts’ impossible hog-housing requirements. The new ban will cost pork producers across the country hundreds of millions of dollars, drive many pork producers out of business, and dramatically raise pork prices.  This new ban also sets a dangerous precedent that would allow states to upend markets across the nation based on their political agendas. The states note, “Massachusetts itself has few hog farmers or pork producers — most live elsewhere.  That means, in effect, that the state is trying to regulate a market in which it lacks expertise and economic stake.” In the amicus brief, the attorneys general assert that the Massachusetts pork ban violates the Constitution, including the following: - Dormant Commerce Clause, which gives the federal government, not state governments, the power to regulate interstate commerce; - Import-Export Clause, which arguably prohibits states from imposing import regulations on products brought in from other states; - Full Faith and Credit Clause, which requires states to respect the laws passed in other states. - Joining Attorney General Bailey in filing the amicus brief are Iowa, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and Wyoming. CLICK HERE for a complete copy of the brief. Read the full article

[cannabisbusinessexecutive]

Will LA’s Social Equity Retail Licensing Be Stopped?

Will LA’s Social Equity Retail Licensing Be Stopped?

By Griffen Thorne, Attorney at Harris Bricken This Thursday, December 8, 2022, the City of Los Angeles will open Phase 3, Round 2 of storefront retail licensing. The City will only accept applications from verified social equity applicants. It will select winners via a “triple-blind” lottery, awarding up to 100 retail licenses. But a guy in Michigan is trying to prevent the lottery from moving…

[uboat53]

Okay, this is a little bizarre, but you should really be paying attention to this Supreme Court case about pigs…

I'm actually serious, though it sounds a bit odd this case actually has a ton of really odd implications for the US economy and the ability of states to pass laws regulating commerce.

The short version is that California passed a law requiring minimum standards for pig enclosures for any pig products sold in the state. Pork producers from other states sued saying that, since there was no way for them to know which pig products would end up in California, California basically passed a national pig regulation in defiance of what's called the "dormant commerce clause".

The dormant commerce clause, for those who are unaware as I was, is basically an idea taken from the Commerce Clause in the Constitution which gives Congress the right to regulate commerce between states. Effectively, the inference here is that, since Congress CAN regulate that commerce, the individual states CANNOT.

But here's the thing, literally everything a state does has at least some effect on other states. If one state has blue laws, for example, it will affect liquor sales on the border areas with states that don't. The key question in this case seems to be: how much can one state's regulations affect commerce in other states before they are in violation of the dormant commerce clause? Or, in the view of some justices, is the dormant commerce clause a valid reading of the Constitution in the first place?

So yeah, this case is about pigs, but it has huge implications for just about anything states might do that affects other states. Can an anti-abortion state ban travel for pregnant women to pro-abortion states? Can a pro-union state ban products produced by non-union workers? The amount of dominos that could fall from this case are oddly wide-ranging.

Anyways, that's my short version of it, if you're interested in the long version this is the best article I've found so far:

[ofjordayne-blog]

i just did my first day of bar prep and it is...straight up the worst oh my god 

[mourning-again-in-america]

"Are there any natural persons present in all fifty states at once?"

[youzicha]

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ., joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.

There has got to be a better way to format this..! If you diagram it out (Gorsuch, Thomas, Barrett, Sotomayor, Kagan) it doesn't seem super complicated, but if you just read the text it's really confusing. At the very least they could merge sections B/D into a contiguous thing, since they are basically about the same topic.

I guess since nobody got a majority, courts will now need to decide what are "the narrowest grounds" for precedental purposes—except then Kavanaugh's opinion says

as I understand it [...] Part IV–C of JUSTICE GORSUCH’s opinion is controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim. There, a four-Justice plurality of the Court applies Pike and rejects the plaintiffs’ dormant Commerce Clause challenge under Pike.

Does that mean that part C will be controlling because a 5-justice majority says so, even though only 4 of them agreed with it? :D

[ashleywarrenbrandt]

The Echo of Brandeis in the Age of Tennessee Wine: Jean-Paul Wegg and the Limits of State Power under the 21st Amendment

Justice Brandeis, writing for the Supreme Court in State Board of Equalization v. Young’s Market Co. (1936), offered a (then) foundational interpretation of the Twenty-first Amendment, asserting a remarkably broad scope of state authority over alcohol. The case involved plaintiffs who argued that California’s $500 licensing fee for importing beer was unconstitutional unless it could be justified…

[absolute-immunities]

Crosskey’s descriptions of a paradisiacal world where the Dormant Commerce Clause and Article I, Section 10 have swept away all State private law and business regulation and left behind only federal general law have got me all 😍

[gunnerina]

My professor co-wrote this article on just how dangerous overturning Roe and Casey will be, and how so many issues are left up in the air.

The end goal of the anti-abortion movement is to ban abortion nationwide. While it waits to have the votes necessary to pass such a federal law, anti-abortion legislators, prosecutors and advocates may attempt to use other state tools to stop as many abortions as possible, reaching outside state borders to limit travel or punish out-of-state providers who provide abortion for their citizens.

Missouri already has given us a taste of what this will look like. Earlier this year, a Missouri legislator introduced an amendment that would create civil liability for anyone who helps another person travel out of state to get an abortion. While this bill did not become law, it is a clear signal that anti-abortion legislators are already thinking about this next frontier.

If they do move in this direction, they will be acting against basic principles of how Americans think about travel and law. Most of us assume that if we travel out of state, we must follow the laws of wherever we are and that the laws of our home state do not apply. Think of gambling in Las Vegas before it was widely legal elsewhere — people traveled there without even a thought that their home state, where gambling was illegal, would punish them when they returned from Nevada.

However, there is no settled law that clearly reflects this understanding. Though there are strong arguments that various parts of the Constitution — including the Due Process Clause, the Privileges or Immunities Clause, the Citizenship Clause and the Dormant Commerce Clause — prohibit states from exercising their jurisdiction beyond their borders, the precedent on these points is not well developed. This lack of precedent is easily manipulable by anti-abortion judges and justices to uphold state efforts to limit abortion travel or prosecute out-of-state providers. After all, few people believed that SB8, the Texas law that creates civil liability for providers offering abortions after about six weeks of pregnancy, would be upheld, but the current Supreme Court did just that.

[pappebrisco]

Building a case to topple Delaware’s corporate chartering dominance: 

1. Dormant commerce clause

2. Privileges and immunities clause (taking “privilege” to mean “private law,” and recognizing that each state establishes internal corporate governance laws; recognizing that customarily each state honors the internal governance of a foreign corporation, giving full faith and credit to the foreign state’s statute which governs the foreign corporation’s internal governance; that this simultaneous recognition of corporations as legal persons while states refuse to supersede foreign corporations’ internal governance with their own governance statutes means EITHER: that corporations cannot be considered legal persons entitled to the same rights as natural persons; or that Delaware’s dominant corporate law violates the dormant commerce clause and the privileges and immunities clause).

[blog-dan-farber-blog]

A Victory for Renewables

A Victory for Renewables

An important Second Circuit ruling in June should help clarify some of the lingering legal issues about state efforts to expand renewable energy. Judge Calabresi’s opinion in Allco Finance v. Dykes rejected claims that Connecticut’s policies interfered with interstate commerce and invaded an area of exclusive federal regulation. This will be a useful precedent for defending other state programs.

[schraubd]

SCOTUS Strikes Down Economic Protectionism in Tennessee

This week, in Tennessee Wine and Spirits Retailers v. Thomas, the Supreme Court struck down a Tennessee ordinance which prohibited new residents from obtaining a liquor store license until they had resided in the state for two years (in a particularly galling twist, they can't renew the license until they have ten years of residency -- even though liquor store licenses have to be renewed annually. Yes, that means there is a seven year no man's land in between.). The vote was 7-2, with Justices Gorsuch and Thomas in dissent. I want to flag this briefly, and particularly the dissents of Gorsuch and Thomas. To be clear: I firmly believe that good policy and proper legal interpretation are not coterminous categories. The question before the Court was (a) whether laws like this violate the "dormant commerce clause" and (b) whether the special legal regime the Constitution provides for alcohol regulation in the 21st Amendment alters that analysis. I'd have to read the case more carefully to decide where I come down on it, though in my extremely brief browse I think the majority has the better of the argument. But this nonetheless serves as a good example of a simple point: there is no straight line connection between conservative jurisprudence and economic liberty. In many circumstances, there is a more straightforward left-libertarian alliance against unnecessary government licensing regimes which serve only to obstruct disfavored classes from economic opportunity. Sometimes, conservatives will join them (the majority opinion here was written by Justice Alito); in the right circumstances sometimes one sees a massive cross-party consensus on these issues. But there remain plenty of cases where conservative politics and conservative legal analysis implies propping up economic protectionism and government red tape. Any assumption of a natural alliance between economic freedom and conservatism is a myth. via The Debate Link https://ift.tt/2IXS93H

[cannabisbusinessexecutive]

Interstate Commerce in 2022 & the Near-Term

Interstate Commerce in 2022 & the Near-Term

By Jay Czarkowski, Founding Partner, Canna Advisors Just like no one was talking about dispensaries 13 years ago and now the topic is everywhere, interstate commerce is in the same place. And just like with cultivation, people were doing it “before it could be done”. It comes down to an economic business decision – and flipping the argument on its head. Is it REALLY illegal at the state level?…