law school writing sample - constitutional law

Constitutional Law Bar Calibration Exercise
by Travis A. Wise
    There are three potential Constitutional challenges against the Zima ordinance prohibiting non-Zima food producers from using the "TBFree" health standard label which is preferred by customers, despite the fact that the non-Zima food producers comply with the same health standards that the in-state producers comply with.
    The first challenge to the legislative ordinance comes under the dormant commerce clause, found in Article I, �8 of the U.S. Constitution. The clause applies when a state passes a law, not preempted by existing federal law, which places a substantial burden on interstate commerce in a discriminatory manner. Naturco will argue that the clause applies in this case because the Zima legislation prohibits the importation of nontested products, and restricts the flow of tested products based solely on their geographical origin, thus causing a substantial burden on interstate commerce. The first clause of the legislation will likely be found constitutional, because it is evenly applied and in the interest of the health, safety and welfare of the state’s residents. However, the labeling clause of the statute in question is facially discriminatory because it differentiates treatment between in-staters and out-of-staters, the latter of which cannot use the labels for their products which gives in-staters a demonstrated competitive advantage. This facial discrimination will cause the strict scrutiny test to be applied to the presumptively unconstitutional legislation. Zima must show that there is a compelling reason, such as health, safety or welfare, for the statute to discriminate against out of state products, and that it does so with substantially effective means, without nondiscriminatory alternatives, and in the least restrictive way.
    The state has no compelling reason for the statute to differentiate in labeling between otherwise identical in-state and out of state products. The health, safety and welfare of the citizens are not being furthered by this clause, which in effect only serves to promote the sales of foods produced in-state. This type of economic protectionism has been held unconstitutional in City of Philadelphia v. New Jersey, 437 U.S. 617 (1978). The legislation is also not the most effective means to accomplish the furtherance of health, safety and welfare, nor the least discriminatory alternative available. Naturco will likely argue that if the Zima was truly concerned about health, safety or welfare, a much more efficient regulation would be to mandate the labeling of all products sold in-state which are produced anywhere under tested circumstances. By enacting legislation which restricts out-of-state food importations over less restrictive alternatives, the state fails to meet the strict scrutiny test. A similar analysis was employed in Dean Milk v. Wisconsin, 340 U.S. 349 (1951).
    The second claim presented by Naturco will be on the basis of the Privileges and Immunities Clause. This clause prohibits a state from denying non-state residents the right to the same privileges and immunities of citizenship of that state. United Building & Construction Trades Council v. Camden (465 U.S. 208 (1984). In this case, food producers in Zima are being given an advantage that out of state producers will never be able to have, because Zima permits in-state producers to use a labeling system that out of state producers, simply by virtue of their geographical location, are unable to utilize. The decrease in sales of the unlabeled product results in out of state products having a great disadvantage. This infringes on the out-of-state producers’ right to earn a livelihood, without a showing by Zima of a substantial reason for the different treatment. As stated above, arguments based on the health, safety and welfare of the citizens fail. The state will argue that the Privileges and Immunities clause does not apply in this case because the plaintiff is a corporation, not a person. This argument would likely win.
    The third claim will be on the basis of the Equal Protection clause. Legislation which arbitrarily discriminates against out-of-state producers may be a violation of the Equal Protection clause. Naturco will have to show that the labeling clause of the legislation is not rationally related to the government interest. The government interest in this case is the health, safety and welfare of its citizens, which it meets by requiring labels to differentiate which products have been tested and which have not. However, this requirement fails to meet the government interest, because it does not require labels on tested products from out of state, which would be just as healthy as foods produced in state, under the production clause of the legislation. This claim will likely prevail.

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