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32. Is the fee constitutional?
A company that has poultry processing plants both in the state and in other states has sued to challenge the fee.
Poultry farming is a major industry in several U.S. states. In one such state, the legislature has enacted a law imposing a fee of two cents per bird on all poultry farming and processing operations in the state. The purpose of the fee is to pay for a state inspection system to ensure that no poultry raised or processed in the state is infected with the virus.
A fatal virus recently infected poultry in several nations. Some scientific evidence indicates that the virus can be transmitted from poultry to humans.
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When a state regulation does not discriminate, but merely burdens interstate commerce, it may be upheld based on a case-by-case balancing of the legitimate state interest versus the burden on interstate commerce. See, e.g., South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U.S. 177 (1938) (state law controlling weight and width of trucks on its highways was not unconstitutional under the Dormant Commerce Clause).
C is correct. The state's poultry fee does not discriminate against out-of-state commerce because it applies only to in-state farming and processing operations, which means the court will first determine whether it burdens interstate commerce at all. The facts do not indicate such a burden because the poultry fee applies only to intrastate commerce and does not regulate activities that occur outside its borders. Even if the fee did burden interstate commerce, however, the court would apply a balancing test measuring the legitimate state interest versus the burden on interstate commerce. There is no indication that the fee would fail that balancing test because the burden, if any, does not outweigh the significant state interests of protecting its citizens (and their food supply) from a potentially fatal cross-species virus. Thus, the fee is permissible under the Dormant Commerce Clause.
A is incorrect. This fee, in the aggregate, might sufficiently affect interstate commerce to trigger the Dormant Commerce Clause. However, that alone does not make it unconstitutional. As explained above, even if scrutinized under the Dormant Commerce Clause's limitations, the question indicates that the fee is constitutional.
B is incorrect. The facts offered do not establish that this fee places an undue burden on interstate commerce. Even if interpreted to constitute an undue burden, however, the poultry fee is likely still constitutional when balanced against the state's significant interest in protecting its citizens (and their food supply) from a potentially fatal virus.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. It is incorrect that a state's laws based on its police power trump the Dormant Commerce Clause's limitations. The Supremacy Clause prohibits state laws that violate federal constitutional limits. And, even though the fee is not outside the reach of the Dormant Commerce Clause, it is constitutional even under that analysis, as described above.