CONGRESSIONAL POWER/ STATE ACTING (Preemption, DCC, P&IC) ANALYSIS

Any State law MUST be rationally related to a legitimate State purpose (economic protectionism only is NOT legitimate purpose).

Has Congress acted?

YES
FEDERAL PREEMPTION Did Congress have a constitutional power source to act? (what is it?)

NO
Does the State law - affecting interstate commerce facially discriminate against out-of-staters or treats them differently than in-staters?

DORMANT COMMERCE CLAUSE PRIVILEGES & IMMUNITIES CLAUSE The citizens of each State shall be entitled to all privileges and immunities of citizens in the several states. Art IV, 2.

YES
What is the scope and has Congress exceed the scope of the power source?

NO

YES
Does the state law survive under strict scrutiny (state demonstrates that its law serves a legitimate (compelling) government interest AND that its legitimate objective cannot be accomplished by any less discriminatory alternative.)?

NO
Is the state law facially neutral but when applied discriminates against interstate commerce (discriminatory effect)?

YES

NO
Does the federal statute contravene some other provision of the constitution?

YES

YES

Congressional Statute is invalid

NO
Is there a nondiscriminatory state law affecting IC that incidentally burdens IC?

NO

NO

YES

Does the State law discriminate against outof state citizens regarding: 1. Fundamental constitutional right OR 2. An important economic activity (discrimination in earning a livelihood)?

YES
Does federal law (explicitly) expressly preempts state law in the language of the federal statute? Does the state law pass Pike Balancing Test: public benefits outweigh burdens placed on interstate commerce by the law?

NO

YES
1. Does the state have a substantial reason (substantial govt. interest) to treat out-of-staters differently? AND 2. Is discrimination substantially related to achieving the states objective (MUST be the least restrictive means of achieving the goal)?

NO

YES

NO
1.

STATE LAW PREEMPTED!

NO
Is there conflict btw federal and state law and is complying with both laws physically impossible? (implied conflict preemption) OR Does state law impede achievement of a federal objective? OR Is federal law and regulation so pervasive as to make reasonable the inference that Congress left no room for the states to supplement (look to congressional intent to have federal law occupy a particular area of law)

YES

YES

2. 3.

NO

1. Is there Congressional approval of the State law? OR 2. Is the State acting as a Market Participant? (must act as business and NOT regulator)?

NO YES

YES

NO

State Law is valid.

State Law is invalid (violates DCC)

State Law is invalid (violates P&IC)

Timothy I. Wiggins