Constitutional Law

Fact pattern

The mad cow disease has made a sudden outbreak in the United States. The disease affects adult cattle, and it can be transmitted to humans who eat beef made from infected cattle. Humans who consume infected beef can develop a human form of mad cow disease, called Creutzfeldt-Jakob disease, which is a fatal condition.

State A is bordered by two other states that are major cattle producers. These are also the only two states with confirmed cases of mad cow disease. In response to the federal government’s inaction to address mad cow disease, State A passes legislation to implement a local response to the crisis. The law, called the Protect Our State from Mad Cow Disease Act (the Act), contains the following two provisions:

Provision 1. It is unlawful to sell cattle products in State A unless the products have been inspected at an approved privately-owned inspection plant located in State A. This inspection facility employs state-of-the-art microbiological equipment, unavailable at most other facilities, to test products for mad cow disease. Recent studies have shown that facilities with inferior microbiological equipment have produced false negatives by failing to detect mad-cow disease in infected cattle. 

Provision 2. A mad cow tax is imposed on all sales of cattle products in State A. Fifty percent of all revenues derived from this tax will be distributed as a subsidy to cattle producers in State A, to promote the production of cattle products uncontaminated by mad cow disease.

A cattle producer, located outside of State A, has sued State A in federal district court to enjoin the enforcement of the Act. The cattle producer argues that the Act is unconstitutional under the Dormant Commerce Clause. More specifically, the producer argues that Provision 1 violates the Dormant Commerce Clause by preventing out-of-state cattle producers from relying on their own inspection facilities, thereby raising the costs of producing and selling cattle. It further argues that Provision 2 violates the Dormant Commerce Clause because the provision benefits in-state cattle producers at the expense of out-of-state cattle producers.

Questions

1. Is Provision 1 constitutional under the Dormant Commerce Clause? Explain.
2. Is Provision 2 constitutional under the Dormant Commerce Clause? Explain.