Dormant Commerce Clause - Health and Safety Regulation

Health and Safety Regulation

The history of commerce clause jurisprudence evidences a distinct difference in approach where the state is seeking to exercise its public health and safety powers, on the one hand, as opposed to attempting to regulate the flow of commerce. The exact dividing line between the two interests, the right of states to exercise regulatory control over their public health and safety, and the interest of the national government in unfettered interstate commerce is not always easy to discern. One Court has written as follows:

Not surprisingly, the Court's effort to preserve a national market has, on numerous occasions, come into conflict with the states' traditional power to "legislat on all subjects relating to the health, life, and safety of their citizens." Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443(1960). On these occasions, the Supreme Court has "struggled (to put it nicely) to develop a set of rules by which we may preserve a national market without needlessly intruding upon the States' police powers, each exercise of which no doubt has some effect on the commerce of the Nation." Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 596 (1997) (Scalia, J., dissenting) (citing Okla. Tax Comm'n v. Jefferson Lines, 514 U.S. 175, 180–83 (1995)); see generally Boris I. Bittker, Regulation of Interstate and Foreign Commerce § 6.01, at 6–5 ("he boundaries of the off-limits area are, and always have been, enveloped in a haze."). Those rules are "simply stated, if not simply applied." Camps Newfound/Owatonna, 520 U.S. at 596(Scalia, J., dissenting).

A frequently cited example of the deference afforded to the powers of state and local government may be found in Exxon Corp. v. Maryland, 437 U.S. 117 (1978), where the State of Maryland barred producers of petroleum products from operating retail service stations in the state. It is difficult to imagine a regimen which might have greater impact on the way in which markets are organized. Yet, the Court found the legislation constitutionally permitted: “The fact that the burden of a state regulation falls on some interstate companies does not, by itself establish a claim of discrimination against interstate commerce,” the Court wrote. The “Clause protects interstate market, not particular interstate firms, from prohibitive or burdensome regulations.”

Similarly, in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) the Court upheld a state law that banned nonreturnable milk containers made of plastic, but permitted other nonreturnable milk containers. The Court found that the existence of a burden on out-of-state plastic industry was not ‘clearly excessive’ in comparison to the state’s interest in promoting conservation. And the court continued:

In Exxon, the Court stressed that the Commerce Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations. A nondiscriminatory regulation serving substantial state purpose is not invalid simply because it causes some business to shift from a predominantly out-of-state industry to a predominantly in-state industry. Only if the burden on interstate commerce clearly outweighs the State’s legitimate purpose does such a regulation violate the commerce clause. When a state statute regarding safety matters applies equally to interstate and intrastate commerce, the courts are generally reluctant to invalidate it even if it may have some impact on interstate commerce. In Bibb v. Navajo Freight Lines 359 U.S. 520, 524 (1959), the United States Supreme Court stated: 'These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field. Unless we can conclude on the whole record that "the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it" we must uphold the statute.