Quarantine

If a California quarantines Florida oranges on the grounds that they carry a disease, the exercise of that power clearly impacts upon interstate commerce. What if a State abuses that power, by quarantining, delaying for inspection, or regulating to protect local commerce? If the State of Minnesota bars the sale of tobacco on the grounds that the product is inherently dangerous, should that be struck down as interfering with interstate commerce in agricultural products? Could the State of Minnesota bar sale of colored oleomargarine? Can a state bar the transport of hazardous waste for deposit in local landfills. Which of these two acts do you think presents a greater threat to national values; which do you think is motivated by local protectionism? How should the Court decide?

A state may take actions to prevent the spread of disease, barring entry of diseased animals, or quarantining, even though those actions interfere with with interstate commerce. The Court sustained a New York statute prohibiting the entry of cattle, unless certified to be disease free by state inspectors. Mintz v Baldwin (1933).

In Leisy v Hardin, 135 US 100 (1890), the Court itemized some of the 19th century decisions in which the Court had ruled on state regulatory powers. We offer an extensive quotation to provide a feel for the kind of issues which confronted the Court. Remember that many of the legal doctrines upon which those decisions are based, are no longer sound. See the Scalia opinion in a previous panel.

• Thus we have held the following to be regulations of interstate commerce: A tax upon freight transported from state to state, (Case of the State Freight Tax, 15 Wall. 232;) a statute imposing a burdensome condition on ship-masters as a prerequisite to the landing of passengers, (Henderson v. Mayor, etc., 92 U.S. 259;) a statute prohibiting the driving or conveying of any Texas, Mexican, or Indian cattle, whether sound or diseased, into the state between the 1st day of March and the 1st day of November in each year, (Railroad Co. v. Husen, 95 U.S. 465;) a statute requiring every auctioneer to collect and pay into the state treasury a tax on his sales, when applied to imported goods in the original packages by him sold for the importer, (Cook v. Pennsylvania, 97 U.S. 566;) a statute intended to regulate or tax, or to impose any other restriction upon, the transmission of persons or property, or telegraphic messages, from one state to another, (Railway Co. v. Illinois, 118 U.S. 557) a statute levying a tax upon non-resident drummers offering for sale or selling goods, wares, or merchandise by sample, manufactured or belonging to citizens of other states, (Robbins v. Taxing Dist., 120 U.S. 489, 7 Sup. Ct. Rep. 592.)

• On the other hand, we have decided in County of Mobile v. Kimball, 102 U.S. 691, that a state statute providing for the improvement of the river, bay, and harbor of Mobile, since what was authorized to be done was only as a mere aid to commerce, was, in the absence of action by congress, not in conflict with the constitution; in Escanaba Co. v. Chicago, (107 U.S. 678) that the state of Illinois could lawfully authorize the city of Chicago to deepen, widen, and change the channel of, and construct bridges over, the Chicago river; in Transportation Co. v. Parkersburg, 107 U.S. 691 that the jurisdiction and control of wharves properly belong to the states in which they are situated, unless otherwise provided; in Brown v. Houston, 114 U.S. 622,2 that a general state tax, laid alike upon all property, is not unconstitutional, because it happens to fall upon goods which, though not then intended for exportation, are subsequently exported; in Morgan's S. S. Co. v. Board of Health, 118 U.S. 455, 6 Sup. Ct. Rep. 1114, that a state law requiring each vessel passing a quarantine station to pay a fee for examination as to her sanitary condition, and the ports from which she came, was a rightful exercise of police power; in Smith v. Alabama, 124 U.S. 465, and in Railway Co. v. Alabama, 128 U.S. 96 that a state statute requiring locomotive engineers to be examined and obtain a license was not in its nature a regulation of commerce; and in Kimmish v. Ball, 129 U.S. 217, that a statute providing that a person having in his possession Texas cattle, which had not been wintered north of the southern boundary of Missouri at least one winter, shall be liable for any damages which may accrue from allowing them to run at large, and thereby spread the disease known as the Texas fever, was constitutional.

• We held also in Welton v. State, 91 U.S. 275, that a state statute requiring the payment of a license tax from persons dealing in goods, wares, and merchandise, which are not the growth, produce, or manufacture of the state, by going from place to place to sell the same in the state, and requiring no such license tax from persons selling in a similar way goods which are the growth, produce, or manufacture of the state, is an unconstitutional regulation; and to the same effect in Walling v. Michigan, 116 U.S. 446, in relation to a tax upon non-resident sellers of intoxicating liquors to be shipped into a state from places without it. But it was held in Patterson v. Kentucky, 97 U.S. 501, and in Webber v. Virginia, 103 U.S. 344, that the right conferred by the patent laws of the United States did not remove the tangible property in which an invention might take form from the operation of the laws of the state, nor restrict the power of the latter to protect the community from direct danger inherent in particular articles. In Mugler v. Kansas, 123 U.S. 623,, it was adjudged that 'state legislation which prohibits the manufacture of spirituous, malt, vinous, fermented, or other intoxicating liquors within the limits of the state, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the constitution of the United States, or by the amendments thereto.'

This is a good time to ask why so many examples. The simple answer is that the Court has developed the law in this area through examples, through lots of examples, in the common law process of making law, on the fly as it were. The Court does not legislate comprehensively, but rather on a case by case basis.

Use of Safety and Health Measures as a possible pretext for local protection. We can all agree that states must have the power to implement reasonable health and safety measures. In fact, if they could not, the result would be an inevitable nationalization of the health and safety functions in a way which would shrink state government and destroy the role of state government. Suppose, however, that local business prevails upon local government to put out of state competitors at a disadvantage, using health and safety as a pretext.

In Dean Milk Co. v. Madison, 340 U.S. 349 (1951), the Court considered a Madison Wisconsin ordinance which forbid the sale of milk in the city as pasteurized unless it has been pasteurized and bottled at an approved pasteurization plant within five miles of the center of the city. Dean Milk, an Illinois corporation, engaged in gathering and distributing milk from farms in Illinois and Wisconsin, was denied a license to sell its products within the city solely because its pasteurization plants were more than five miles away. Madison claimed that the ordinance served important public health concerns. Recall that New York could prohibit importation of cattle from other states, unless those cattle had been locally inspected at the border. Madison argued that milk inspectors could not properly perform their function, unless they physically supervised the pasteurization plant itself.

The Court rejected this contention.

• But this regulation, like the provision invalidated in Baldwin v. Seelig, Inc., supra, in practical effect excludes from distribution in Madison wholesome milk produced and pasteurized in Illinois. " The importer . . . may keep his milk or drink it, but sell it he may not." In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.

• A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods. Cf. H. P. Hood & Sons v. Du Mond, supra. Our issue then is whether the discrimination inherent in the Madison ordinance can be justified in view of the character of the local interests and the available methods of protecting them. Cf. Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944).

• To permit Madison to adopt a regulation not essential for the protection of local health interests and placing a discriminatory burden on interstate commerce would invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause. Under the circumstances here presented, the regulation must yield to the principle that "one state in its dealings with another may not place itself in a position of economic isolation." Baldwin v. Seelig, Inc., supra, at 527.

Another wrinkle on the Dean Milk problem is found in A & P TEA CO. v. COTTRELL, 424 U.S. 366 (1976). A Mississippi regulation provided that milk and milk products from another State might be sold in Mississippi only if the other State accepted milk or milk products produced and processed in Mississippi on a reciprocal basis. Mississippi rejected an application for a permit to distribute for sale at A&P's retail outlets in Mississippi milk and milk products from its Louisiana processing plant solely on the ground that Louisiana had not signed a reciprocity agreement with Mississippi as required by the regulation. The Court rejected the Mississippi law:

• ... at least since Cooley v. Board of Wardens, 12 How. 299 (1852), it has been clear that "the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . [T]he Commerce [424 U.S. 366, 371] Clause even without implementing legislation by Congress is a limitation upon the power of the States." Freeman v. Hewit, 329 U.S. 249, 252 (1946). It is no less true, of course, that under our constitutional scheme the States retain "broad power" to legislate protection for their citizens in matters of local concern such as public health, H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 531-532 (1949), and that not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States. Freeman v. Hewit, supra, at 253; Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 351-352 (1939). Rather, in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause - where local and national powers are concurrent - the Court in the absence of congressional guidance is called upon to make "delicate adjustment of the conflicting state and federal claims," H. P. Hood & Sons, Inc. v. Du Mond, supra, at 553 (Black, J., dissenting), thereby attempting "the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce." Freeman v. Hewit, supra, at 253. In undertaking this task the Court, if it finds that a challenged exercise of local power serves to further a legitimate local interest but simultaneously burdens interstate commerce, is confronted with a problem of balance:

• "Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly [424 U.S. 366, 372] excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

This latter case illustrates application of the so-called Pike Test. It should be relatively easy to determine when state regulation has a discriminatory purpose. It is much more difficult, however, for the judiciary to determine whether the local interest involved is important enough to justify interference with commerce.

Drummers, peddlars, solicitors, and the internet. One distinguishing difference between local merchants and out of state interests is, of course, that locals sell in local stores, whereas foreign merchants must use other forms of reaching local customers. For this reason, a significant part of commerce clause jurisprudence focussed upon laws which regulated solicitation devices. Of this, in the next panel.