Texas Attorney General Opinion: JM-992 Page: 2 of 4
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Honorable Brad Wright - Page 2 (JM-992)
regulations which are contrary to the goal of providing a
uniform, non-discriminatory national marketplace for goods
and services. See generally Rotunda, Nowak, and Young,
Treatise on. Constitutional Law: Substance and Procedure
11.1, at 579. In the case at hand, we can find no federal
legislation or judicial decisions which expressly deny to
the states the power to adopt legislation regulating the
operation of dental laboratories.
If there is no preemption of state power, then the
courts examine the state law for evidence of discrimination
aimed solely at out-of-state businesses. As the authors of
a leading treatise on constitutional law note:
[T]he text of the commerce clause provides no
overt restraint of state impingement of
interstate commerce in the absence of Con-
gressional legislation. It has been left to
the [courts] to interpret, as inherent in
that affirmative grant of power, self-
executing limitations on the scope of per-
missible state regulation.
Rotunda, Nowak, and Young, supra, at 578.
Thus, in the absence of preemptive legislation by the
national government, the courts must define the proper
contours of acceptable state regulation of interstate
commerce. First, they recognize that the states may apply
some regulation to interstate commerce in order to protect
the health and safety of their citizens. Seer e.g., Willson
v. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829).
In every case where the courts examine actions taken
by states ostensibly to protect their citizens, they are
concerned chiefly with whether the exercise of state power
affects both local and interstate interests equally, so as
to negate the possibility that the use of the police power
is in fact a disguised mechanism to give unfair advantage to
home-state commercial interests. See. e.g., Bibb v. Navajo
Freight Lines, Inc., 359 U.S. 520 (1959); Rotunda, Nowak,
and Young, supra, 11.6, at 590-593. See also Dowling,
Interstate Commerce and State Power, 27 Va. L.Rev. 1 (1940).
In the statutory provision at hand, it is important to
note that the registration provisions apply to dental
laboratories located both within and without the state.
Thus, as provided for in the statute, the requirement does
not discriminate against national interests.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-992, text, 1988; (texashistory.unt.edu/ark:/67531/metapth273430/m1/2/: accessed November 20, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.