The farmer can challenge the law as a violation of the dormant Commerce
Clause because it discriminates against out-of-state commerce by
excluding the sale of fruits and vegetables grown in other states from
participation in the Farmer’s Markets. According to the farmer, this
restriction involves
both discriminatory means as well as impermissible ends because it is
an example of economic protectionism in that it seeks to preclude the
sale of products grown in other states in order to promote the sale of
products grown within the state. As a program that discriminates
against out-of-state commerce, the state must show that the restriction
is designed to advance a legitimate local interest and that there are
no nondiscriminatory alternative means available to advance that
interest. The restriction fails both prongs of the test. The purpose of
the law is the illegitimate one of economic
protectionism and the means, an outright exclusion of products grown
outside the state from participating in the state-sponsored Farmer’s
Markets, are not the only means available to achieve the state's
objective. Instead of banning the sale of out-of-state fruits and
vegetables entirely, the state could allow local farmers to label their
products as locally grown and could promote the sale of such products,
as it is doing, through its publicity campaign that encourages the
buying of local produce through its “Support Your Local Farmer”
campaign. This would encourage the buying of local products without
excluding out-of-state products entirely from the Farmer's Markets.
The State of Midwest would defend its restriction by arguing that the
state is a market participant and not a market regulator. It is
not regulating the fruit and vegetable market. Private sellers of
fruits and vegetables are free to sell products grown everywhere. The
state is only deciding what it wants to sell in the 3 Farmers
Markets that it operates. As a seller of fruits and vegetables,
the state should be permitted to decide what it wants to sell. This
case does not involve a natural resource, international commerce
or downstream activity. The state is not trying to control what
purchasers of fruits and vegetables at its markets do with the products
they buy. It is only seeking to control the goods that it sells
in the market in which it participates (the sale of fruits and
vegetables market). The state also has no monopoly over the selling of
fruits and vegetables because they can also be bought and sold at many
private markets. Because the state gets the benefit of the
market participant exception, it is free to discriminate against
out-of-state products in order to protect local farmers.
The farmer challenging the restriction can also claim that his rights
under the Privileges and Immunities Clause of Article IV have been
violated. He will argue that he satisfies the three threshold
requirements because (1) he is a flesh and blood non-resident, (2) who
has been
discriminated against because he is an out-of-state farmer, and (3) he
is
being denied the right to pursue a lawful occupation (selling fruits
and vegetables) by the State of Midwest, thus infringing on one of the
privileges and immunities protected by the clause.
The state will argue in response that the state is not discriminating
based on residency. It is only discriminating based on the place
where fruits and vegetables are grown. If a nonresident of
Midwest owns land in Midwest the nonresident would be able to sell
fruits and vegetables grown on that land at the Farmer’s Markets.
Moreover, a resident of Midwest who owns farmland in Midsouth and grows
produce on that land would not be able to sell the fruits and
vegetables at the Midwest Farmer’s Markets. Therefore the law
does not discriminate based on residency.
The Midsouth farmer will respond to this argument by asserting that the
practical effect of the law is to operate as a discrimination against
out-of-state residents because the vast majority of farmers who own
land in Midwest are residents of Midwest and very few residents of
Midwest own farmland outside of Midwest.
It addition, the state will argue that the right to sell fruits and
vegetables at a market operated by the state is not a privilege and
immunity of state citizenship because it only involves an
exclusion from the state’s own markets and not from private
markets within the state. It is similar to the distinction
between government employment and private employment. The Supreme
Court has found that the right to hold a government job is not one of
the privileges and immunities of state citizenship. Similarly,
the court should find that the right to sell fruits and vegetables at
state-owned markets is not a privilege and immunity of state
citizenship.
If the farmer succeeds in convincing the court to reach the merits of
his privileges and immunities clause claim, the burden will shift to
the state and the state will have to show(1) that it has a substantial
reason for treating nonresidents differently (they are a peculiar
source of the evil the state is trying to address) and (2) that the
degree of discrimination against nonresidents bears a substantial
relationship to the state’s objective. The farmer will argue that
the state cannot satisfy this intermediate scrutiny test because, even
if promoting local farmers is a substantial state interest, the degree
of discrimination (100 % discrimination because out of state farmers
are completely excluded) is not substantially related to the state’s
objective. There are many less discriminatory alternatives that
would promote local farmers while still allowing access by out-of-state
growers. For example, the state could subsidize Midwest farms and
therefore allow them to sell their fruits and vegetables at lower
prices giving them a significant market advantage over produce grown in
other states or the state could both allow local growers to label their
produce as locally grown and heavily promote buying from local farms
while still allowing out-of-state produce to be sold at its Farmer’s
Markets. Both of these alternative means involve a closer fit between
the means and the state's ends and demonstrate that the total ban is
not substantially related to the state's objective.
If the state fails to convince the court that it can satisfy the
standard used under the Privileges and Immunities Clause of Article IV,
it cannot depend on a market participant exception because, unlike the
dormant Commerce Clause, there is no market participant exception to
the Privileges and Immunities Clause.
(NOTE: There is one other minor issue in this question, but it is
beyond that scope of what we have covered thus far. The farmer
could also challenge the law under the 14th Amendment Equal Protection
Clause because it discriminates based on the location where the fruits
and vegetables are grown and prefers locally grown produce over produce
grown outside the state. This form of discrimination is not based
on a suspect classification and would only be subject to a rational
basis review and the state would almost certainly be able to show that
its restriction is rationally related to a legitimate state
interest. Therefore, the equal protection challenge would fail.)