Kassel V. Consolidated Freightways Corp. - Concurrence

Concurrence

Justice Brennan concurred in the judgment, joined by Justice Thurgood Marshall. He suggested a new, three-factor test for the Dormant Commerce Clause:

1. The courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation.
2. The burdens imposed on commerce must be balanced against the local benefits actually sought to be achieved by the State's lawmakers, and not against those suggested after the fact by counsel.
3. Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens and benefits are related to safety rather than economics.

450 U.S. at 679-680.

In this analysis, Brennan suggested greater deference to the state legislature and better examination of the legislative history of the statute in dispute, rather than giving credence to the factual record created at trial by the State’s attorneys. However, protectionist legislation such as this, which shifts burdens and expenses to other states, does not require such deference. Brennan would create a per se invalidity rule for such laws.