1 249 F.3d 66 (1st Cir. 2001), cert. granted, 122 S. Ct. 2657 (U.S. June 28, 2002) (No. 01-188). Kevin Concannon is the Commissioner of the Maine Department of Human Services.

2 Id.

3 The “dormant Commerce Clause doctrine” refers to the self-executing limitations on state power to regulate interstate commerce that the Supreme Court has inferred from Article I, § 8's grant of power over interstate and foreign commerce to Congress. The doctrine, though often criticized, dates from the Court's 1824 Gibbons v. Ogden decision. Gibbons v. Ogden, 22 U.S. 1 (1824). The modern dormant Commerce Clause doctrine does several things: it prohibits states from passing statutes that, either on their face or in purpose or effect, discriminate against interstate commerce or out-of-state commercial actors. See, e.g., S. Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 169 (1999); Philadelphia v. New Jersey, 437 U.S. 617 (1978). Statutes that do so are subject to a “per se” rule of invalidity, and will be sustained only on a showing by the state that the statute serves a legitimate local purpose and that the state has no less discriminatory alternatives. See Maine v. Taylor, 477 U.S. 131, 138 (1986) (“[O]nce a state law is shown to discriminate against interstate commerce ‘either on its face or in practical effect,’ the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means … .” (citing Hughes v. Oklahoma, 441 U.S. 322, 336(1979)). Statutes that seek to regulate commerce extraterritorially, that is, activity that takes place outside the boundaries of a state, are similarly suspect under this per se rule. See, e.g., Brown-Forman Distillers v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). For those statutes that neither discriminate on their face, nor in their purpose or effect, the Court will ask whether the putative local benefits are clearly exceeded by the burdens on interstate commerce. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). The two-tiered structure of the dormant Commerce Clause doctrine and the variations within each tier are discussed in BORIS I. BITTKER, BITTKER ON THE REGULATION OF INTERSTATE AND FOREIGN COMMERCE (1999 & Supp. 2003); see also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 5.3 (2d ed. 2002).

Though it has a lengthy doctrinal pedigree, the dormant Commerce Clause doctrine has been subject to continuous criticism by scholars and judges who argue that the doctrine has little basis in the text of the Constitution or in the intent of its Framers. See, e.g., Tyler Pipe Indus., Inc. v. Wash. State Dep't Revenue, 483 U.S. 232, 254 (1986) (Scalia, J., concurring in part and dissenting in part); Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569. Others question whether the Court possesses the institutional competence to evaluate state economic policy. See, e.g., Farber, Daniel A., State Regulation and the Dormant Commerce Clause, 3 CONST. COMMENT. 395 (1986)Google Scholar. For purposes of this essay, I take the dormant Commerce Clause doctrine as a given—a doctrinal fact of life that the Court is unlikely to repudiate. Space prohibits a full defense of the doctrine, though I have argued elsewhere that certain claims of the doctrine's critics are overstated. See, e.g., Brannon P. Denning, The Dormant Commerce Clause Doctrine and Constitutional Structure (unpublished manuscript), available at http://www.law.siu.edu/faculty/denning/biblio.htm (arguing that critics who cite the Commerce Clause's lack of explicit exclusivity to undermine the textual basis of the dormant Commerce Clause doctrine have overlooked important evidence).

4 512 U.S. 186 (1994).

5 See Barrington, Conrad J., Note and Comment, Pharmaceutical Research and Manufacturers of America v. Concannon and Maine's Prescription Drug Rebate Statute: A Twenty-First Century Solution to the Medicaid Crisis, 23 WHITTIER L. REV. 1127 (2002)Google Scholar; Pancoast, Abigail B., Comment, A Test Case for Reevaluation of the Dormant Commerce Clause: The Maine Rx Program, 4 U. PA. J. CONST. L. 184 (2001)Google Scholar; Phelps, Whitney Magee, Comment, Maine's Prescription Drug Plan: A Look into the Controversy, 65 ALB. L. REV. 243 (2001)Google Scholar. In the afore listed articles, none of the authors use the linkage analysis or note possible parallels between the Maine Program and the Massachusetts milk pricing order struck down in West Lynn Creamery, Inc. in their discussions of the Maine Rx Program and the dormant Commerce Clause doctrine.

6 Coenen, Dan T. & Hellerstein, Walter, Suspect Linkage: The Interplay of State Taxing and Spending Measures in the Application of Constitutional Antidiscrimination Rules, 95 MICH. L. REV. 2167 (1997)Google Scholar.

7 ME. REV. STAT. ANN. tit.22, §§ 2681-2682 (West Supp. 2002).

8 Id. § 2681(1).

9 According to the statute, a “labeler” is “an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the federal Food and Drug Administration … .” Id. § 2681(2)(C).

10 Id. § 2681(3). Though the statute terms the payment for supplying drugs through Maine's Medicaid program a “rebate” to the state, and though the First Circuit stressed the “voluntary” nature of the rebate, Concannon, 249 F.3d at 82, I will refer to the rebate throughout this essay as a “tax” and will assume it to be such for purposes of the linkage analysis offered below. I do this for several reasons. First, the Supreme Court has made clear that it will not elevate form over substance in dormant Commerce Clause cases. See, e.g., Camps Newfound/Owatonna v. Harrison, 520 U.S. 564, 575 (1997) (“To allow a State to avoid the strictures of the dormant Commerce Clause by the simple device of labeling its discriminatory tax a levy on real estate would destroy the barrier against protectionism that the Constitution provides.”); W. Lynn Creamery, Inc., v. Healy, 512 U.S. 186, 194 (1994) (noting that state “pricing order,” which imposed an “assessment” on all milk sold in the state was “effectively a tax which makes milk produced out of State more expensive”); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977) (criticizing the old rule whereby the Court had struck down statutes directly taxing interstate commerce, but upholding those seeking to tax only “the privilege of doing business”; the old rule “has no relationship to economic realities. Rather it stands only as a trap for the unwary draftsman”). Therefore, whatever label the state employs, the statute must be assessed according to its economic effects. See id. at 288-89. Judged according to these criteria, the Maine Program looks like a tax on the privilege of selling prescription drugs to the state's Medicaid population. The avowed purpose of the Program is to raise revenue that will then be used to provide services to the State's citizens. See, e.g., BLACK's LAW DICTIONARY 1469 (7th ed. 1999) (defining tax as “[a] monetary charge imposed by the government on persons, entities, or property to yield public revenue”). Further, attempting to insulate the tax from judicial scrutiny by reference to its “voluntary” nature seems to prove too much. After all, any tax is voluntary in the sense that the taxpayer is obligated to pay only to the extent the taxpayer chooses to engage in the taxed activity. Moreover, in this case, refusing to participate in the Program subjects the drug sellers to distinct penalties. See infra notes 15-16 and accompanying text. It would be absurd to allow a state to avoid judicial scrutiny of its taxes by allowing it to re-characterize them as “voluntary rebates” to the state triggered by engaging in a particular action. Cf. Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1429-430 (1989) (discussing “unconstitutional conditions as coercion” in the corporate privileges context). Maine recognized that the characterization of its “rebate” program as a tax was possible. In Concannon, Maine argued that the re-characterization met the relevant Supreme Court test for scrutinizing state taxes under the dormant Commerce Clause doctrine. Concannon, 249 F.3d at 84 n.11 (“On appeal, Maine argues in the alternative that the Act does not violate the dormant Commerce Clause because if the rebate provision is construed as a tax, it satisfies the requirements set forth in the Complete Auto line of cases dealing with taxation on interstate commerce.” (citing Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977)). The First Circuit, however, refused to address the issue since Maine had not raised it in the lower court. Concannon, 249 F.3d at 84 n.11. It may be that the “suspect linkage” argument addressed below, see infra Parts IV-V, could be expanded to accommodate non-tax regulations that are linked to discriminatory subsidies, but I leave that for others to consider, for I am satisfied that, however denominated, Maine's “rebate” is in fact a tax on the privilege of selling drugs to its Medicaid patients.

11 Id. § 2681(4).

12 Id. § 2681(5). Maine plans to phase the discount into effect. The “initial discounted price” is “a price that is less than or equal to the average wholesale price, minus 6%, plus the dispensing fee permitted under [Maine’s] Medicaid program … .” Id. § 2681(2)(B). The “secondary discounted price” required after October 1, 2001 is defined as “a price that is equal to or less than the initial discounted price minus the amount of any rebate paid by the State to the participating retail pharmacy.” Id. § 2681(2)(G).

13 Id. § 2681(2)(F).

14 Id. § 2681(6)(C)-(D) (requiring that participating pharmacies submit claims to the State, which is then obligated to reimburse the pharmacies “[o]n a weekly or biweekly basis …”). In addition, a $3 per prescription “professional fee” is also authorized for the initial transaction, with further professional fees to be set by the commissioner. Id. § 2681(6)(D). Utilization data collected from participating pharmacies will also be used to compute the rebates. Id. § 2681(6)(E).

15 Id. § 2681(9).

16 Id. § 2681(7).

17 Id.

18 PhRMA v. Concannon, 249 F.3d 66, 83 (1st Cir. 2001), cert. granted, 122 S. Ct. 2657 (U.S. June 28, 2002) (No. 01-188).

19 Id. at 74-79. The court also found that PhRMA had standing to bring the lawsuit. Id. at 72-74. Should the Court decide that federal law preempts the Maine Rx Program, then it is unlikely to reach the dormant Commerce Clause question. Cf. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 374 n.6 (2000) (striking down a Massachusetts law aimed at curbing trade with Burma on preemption grounds; declining to reach the question of whether a state law violated the dormant Foreign Commerce Clause doctrine). This article does not address the preemption argument.

20 Id. at 81.

21 Id. at 82.

22 PhRMA relied heavily on three “extraterritorial” cases in which the Supreme Court struck down statutes that attempted to control in-state prices by tying them to the prices charged for sales of similar products in other states. Id. at 79-81 (citing Healy v. Beer Inst., 491 U.S. 324 (1989) (striking down a Connecticut statute requiring a beer seller to affirm that in-state prices are no greater than prices posted in adjacent states); Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986) (striking down a similar New York price-affirmation statute); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935) (striking down a state law prohibiting in-state sales of milk purchased outof- state for less than the minimum in-state price)).

23 Concannon, 249 F.3d at 81-82 (citation omitted).

24 Id. at 82.

25 Id.

26 Id. (“We note that the commissioner's ‘best efforts’ [to negotiate rebates] may become coercive or otherwise inappropriate, but we cannot say so on this facial challenge. This may be an issue that needs to be revisited once the Act takes effect. On a facial challenge, however, the use of the commissioner's ‘best efforts’ indicates that the Act is not ‘regulating’ prices, but merely ‘negotiating’ rebates.”).

27 Id. at 82-83.

28 Id. at 83.

29 The court mentioned the facial discrimination and discriminatory effects tests, but noted that “PhRMA does not contend, nor did the district court find, that the Maine Act discriminates on its face or in its effects.” Concannon, 249 F.3d at 83.

30 Id. at 84.

31 Id.

32 Id.

33 Extraterritoriality needs to be better integrated into the dormant Commerce Clause doctrine, especially given its potential effects on the ability of states to regulate the Internet, for example. Such a reconceptualization is beyond the scope of this Article.

34 Concannon, 249 F.3d at 83.

35 See generally ME. REV. STAT. ANN. tit.22, §§ 2681-2682 (West Supp. 2002). The Maine Program contains no attempt to tie the prices at which drugs are sold in the State to the prices of drugs sold by manufacturers or labelers elsewhere in the United States. Id. But see Healy v. Beer Inst., 491 U.S. 324, 326 (1989); Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 575 (1986); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 518 (1935). In Healy v. Beer Inst., the Court struck down a Connecticut statute that required out-of-state beer shippers to affirm that the prices at which beer was being sold in Connecticut was no higher than the prices at which their beer was sold in other states. 491 U.S. at 326. In Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., the Court invalidated a similar New York statute requiring that sales from manufacturers to wholesalers be made at prices no higher than the lowest price at which those products were sold in other states. 476 U.S. at 575. Finally, in the older Baldwin v. G.A.F. Seelig, Inc. case, the Court struck down a New York law prohibiting the in-state sale of milk imported from other states if the seller had purchased the out-of-state milk for less than the prescribed minimum at which milk was sold in New York. 294 U.S. at 518.

36 Phelps, supra note 5, at 249.

37 See Baldwin, 294 U.S. at 511. The Program also did not attempt to protect in-state producers by forbidding the sale of goods purchased outside a state and imported if purchased at less than a state-specified minimum. See generally ME. REV. STAT. ANN. tit.22, §§ 2681-2682 (West Supp. 2002).

38 Goldsmith, Jack L. & Sykes, Alan O., The Internet and the Dormant Commerce Clause, 110 YALE L.J. 785, 789 (2001)Google Scholar (“The scope of the extraterritoriality principle is unclear.”) (citation omitted); Regan, Donald H., Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1884 (1987)Google Scholar (“[W]e do not understand the extraterritoriality principle … nearly as well as we should.”).

39 See supra note 22 and accompanying text.

40 Justice Scalia, though concurring in the Court's judgment in Healy v. Beer Inst., refused to endorse the extraterritoriality reasoning of the majority. The problem with that line of reasoning, he argued, “is that innumerable valid state laws affect pricing decisions in other States—even so rudimentary a law as a maximum price regulation.” 491 U.S. at 345 (Scalia, J., concurring). He found the principle “dubious and unnecessary to decide” the case. Id. Chief Justice Rehnquist, and Justices O’Connor and Stevens dissented, in part because they doubted that the Connecticut statute in fact regulated or controlled prices in other states. 491 U.S. at 347-48 (Rehnquist, C.J., dissenting). Interestingly, Justice Stevens wrote the majority opinion in West Lynn Creamery, Inc., discussed below, for a majority that included both Justices Scalia and O’Connor. W. Lynn Creamery, Inc., v. Healy, 512 U.S. 186 (1986); see infra Part IV(B)(2). In West Lynn Creamery, Chief Justice Rehnquist dissented. 512 U.S. at 212-17.

41 See infra notes 62-91 and accompanying text.

42 See infra notes 62-95 and accompanying text.

43 But see Greater Access to Affordable Pharmaceuticals Act of 2001, S. 812, 107th Cong. (2001). This law, in part, authorized the kind of program Maine enacted as an alternative to a comprehensive, federal prescription drug plan. Id. A House drug plan passed earlier without such a provision. See Greater Access to Affordable Pharmaceuticals Act of 2001, H.R. 1862, 107th Cong. (2001). The Senate and House bills are so dissimilar that no conference was planned.

44 See, e.g., BITTKER, supra note 3, at § 8.10 (discussing the Supreme Court's abandonment of its flat prohibition on state taxation of interstate commerce in favor of a regime that permitted interstate commerce to be taxed, but not discriminated against, by states); CHEMERINSKY, supra note 3, at § 5.4.1 (“Discriminatory taxes are virtually never allowed, while nondiscriminatory taxes are much more likely to be permitted.”); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-16 (3d ed. 2000) (discussing the emergence of the dormant Commerce Clause as the dominant one in the Court's scrutiny of state taxes on interstate commerce).

45 See, e.g., New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 278 (1988) (“Direct subsidization of domestic industry does not ordinarily run afoul of [the dormant Commerce Clause] … .”); BITTKER, supra note 3, § 6.06[G] (noting the arguments in favor of subsidies’ constitutionality); Coenen, Dan T., Business Subsidies and the Dormant Commerce Clause, 107 YALE L.J. 965, 977 (1998)Google Scholar (noting the long-standing view that such subsidies are not constitutionally problematic); Hellerstein, Walter & Coenen, Dan T., Commerce Clause Restraints on State Business Development Incentives, 81 CORNELL L REV. 789, 839-46 (1996)Google Scholar; but see Camps Newfound/Owatonna v. Harrison, 520 U.S. 564, 589 (1997) (“We have never squarely confronted the constitutionality of subsidies … and we need not address these questions today.” (internal quotation marks omitted) (citations omitted)); Enrich, Peter D., Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 HARV. L. REV. 377 (1996)Google Scholar (arguing that the dormant Commerce Clause doctrine should be applied to such incentives, as well as some subsidies).

46 Coenen & Hellerstein, supra note 6.

47 468 U.S. 263 (1984).

48 Bacchus Imports, 468 U.S. at 265.

49 Id. at 268.

50 Id. at 269. The Court found that “[t]he State's position that there is no competition is belied by its purported justification in the first place,” for example, the need to support local industries by encouraging consumption of the product. Id.

51 Id. at 273.

52 Id. at 271.

53 Id. at 273. The State also argued that the Twenty-First Amendment permitted the discriminatory tax, a position that the Court rejected. Id. at 274-77. Three justices dissented, arguing that the State was correct on the Twenty-First Amendment issue. Id. at 278-87. For an argument that the dissenters were correct and that the majority was wrong on this issue, see Denning, Brannon P., Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-First Amendment, and State Regulation of Internet Alcohol Sales, 19 CONST. COMMENT. 297 (2002)Google Scholar.

54 486 U.S. 269 (1988).

55 Id. at 271.

56 Id. at 272.

57 Id. at 272-73.

58 Id. at 274.

59 Id. at 278.

60 Id.

61 See, e.g., Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951) (adopting the view that a discriminatory “ordinance is valid simply because it professes to be a health measure … would mean that the Commerce Clause of itself imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods”); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533 (1949) (“This distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law.”).

62 512 U.S. 186 (1994).

63 W. Lynn Creamery, Inc., 512 U.S. at 188.

64 Id.

65 Id. at 193.

66 Id.

67 Id. at 194.

68 Id.

69 Id.

70 Id. at 197.

71 Id. at 198.

72 Id. at 201.

73 Id. at 199.

74 Id. at 200.

75 Id. at 201.

76 Id.

77 Id. at 202.

78 Id.

79 Id. at 203.

80 Id. Stevens also noted that the Massachusetts consumers are part of an integrated interstate market. “[T]he purpose and effect of the pricing order are to divert market share to Massachusetts dairy farmers. This diversion necessarily injures the dairy farmers in neighboring states.” Id. Of course, the same might be said for cash subsidies, which the Court assumed were not problematic under the dormant Commerce Clause doctrine. See id. at 199 (“A pure subsidy funded out of general revenue ordinarily imposes no burden on interstate commerce, but merely assists local business.”).

81 Id. at 205 (“If we were to accept these arguments, we would make a virtue of the vice that the rule against discrimination condemns. Preservation of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Commerce Clause prohibits.”).

82 Id. at 208 (Scalia, J., concurring).

83 Id. at 209 (Scalia, J., concurring).

84 Id. at 209-10; see also Tyler Pipe Indus., Inc. v. Wash. State Dep't Revenue, 483 U.S. 232, 263 (1987) (Scalia, J., concurring in part and dissenting in part) (expressing doubt about the strength of negative-Commerce-Clause doctrine).

85 W. Lynn Creamery, Inc., 512 U.S. at 210 (Scalia, J., concurring).

86 Id. at 210-11 (Scalia, J., concurring) (“It is long settled that [a discriminatory tax on interstate commerce] is unconstitutional under the negative Commerce Clause … . [E]xemption from or ‘credit’ against a ‘neutral’ tax is no different in principle from the first, and has likewise been held invalid.” (citation omitted)).

87 Id. at 211 (Scalia, J., concurring).

88 Id. at 210 (Scalia, J., concurring).

89 Id. at 211 (Scalia, J., concurring).

90 Id. (Scalia, J., concurring).

91 Id. at 212 (Scalia, J., concurring).

92 TRIBE, supra note 44, at 1113.

93 W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring). To take but one example, suppose a state heavily subsidized roads and education in a bid to lure industry from a state with lower labor costs. If a business moved from one state to the other in order to take advantage of that infrastructure, would the subsidizing state be accused of “neutralizing the advantage possessed by lower cost, out-of-state producers?” See Coenen, supra note 45, at 1003.

94 W. Lynn Creamery, Inc., 512 U.S. at 214 (Rehnquist, C.J., dissenting) (noting that “the Court strikes down this method of state subsidization because the nondiscriminatory tax levied against all milk dealers is coupled with a subsidy to milk producers”); Coenen, supra note 45, at 1016 (“The Chief Justice … suggested that the critical criterion in assessing the constitutionality of state subsidy programs should be whether they direct payments on a discriminatory basis to the same persons whose tax payments create the subsidy fund.” (citation omitted)); Coenen & Hellerstein, supra note 6, at 2175 (noting the criticism and the majority's failure to respond to it).

95 Coenen & Hellerstein, supra note 6, at 2174 (“Following Justice Scalia's logic, Massachusetts could have imposed the same taxes in the same amounts on the same milk dealers, and paid the same subsidies in the same amounts to the same milk producers, if only the state had run the tax payments into, and the subsidies back out of, the state's general fund.” (citation omitted)); Note, Functional Analysis, Subsidies, and the Dormant Commerce Clause, 110 HARV. L. REV. 1537, 1554 (1997) (asking why “[a]n otherwise unconstitutional tax becomes constitutional if the tax revenue simply makes a momentary pit stop in the general treasury”).

96 Coenen & Hellerstein, supra note 6.

97 Id. at 2195.

98 Id.

99 Id. at 2197-98.

100 Id. at 2196.

101 Id. at 2198. Their example is a credit against state property taxes equal to the amount of state income taxes paid. Id. at 2197-98.

102 Id. at 2198.

103 Id.

104 Id.

105 Id.

106 Id. at 2199.

107 Id. Coenen and Hellerstein note that spending can be under-universal and over-universal in the sense that some payments will not cover all state citizens and others will cover persons who are not state citizens. Id. at 2199-200.

108 Coenen and Hellerstein's example is a tax and a spending program, both of which “are computed as a stated percentage of gross receipts.” Id. at 2200.

109 Id. at 2200-01.

110 Id. at 2201.

111 Id.

112 Id. at 2195.

113 Id. at 2196.

114 Id.

115 W. Lynn Creamery, Inc., 512 U.S. at 190-91.

116 Id. at 194-95.

117 Id. at 211 (Scalia, J., concurring).

118 The statute defines “labelers” as anyone “that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale … .” 22 ME. REV. STAT. ANN. tit. 22, § 2681(2)(C) (West Supp. 2002). The term would clearly include retail pharmacies.

119 Id. § 2681(5).

120 Id. § 2681(6)(D).

121 W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 202 (1994).

122 See supra notes 50-51 and accompanying text.

123 W. Lynn Creamery, Inc., 512 U.S. at 193; see also Camps Newfound/Owatonna v. Harrison, 520 U.S. 564, 571 (1997) (acknowledging, as a justification of the dormant Commerce Clause doctrine, “the central importance of federal control over interstate and foreign commerce” and the Founders’ desire to eliminate “invidious and partial restraints” (internal quotation marks omitted)).

W. Lynn Creamery, Inc., 512 U.S. at 200-01.

125 See Cooley v. Bd. of Wardens, 53 U.S. 299 (1851); see also infra notes 137-140 and accompanying text for a discussion of the “policy responsiveness” aspect of Coenen and Hellerstein's suspect linkage analysis in the context of the Maine Rx Program.

126 See CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT (1996).

127 W. Lynn Creamery, Inc., 512 U.S. at 201.

128 See supra text accompanying note 93.

129 See Coenen & Hellerstein, supra note 6, at 2197-98; see also note 102 and accompanying text.

130 See supra note 14 and accompanying text.

131 See supra note 105 and accompanying text.

132 W. Lynn Creamery, Inc., 512 U.S. at 201.

Id.; see also id. at 200 (noting that the subsidy to in-state interests could buy-off domestic opposition to the facially neutral tax, thus distorting the political processes that might otherwise operate to defeat the tax); Coenen & Hellerstein, supra note 6, at 2198 (“[S]imultaneity may well distort political processes in a way that raises particular risks of factional overreaching. The majority in West Lynn Creamery, Inc. focused on this point, and we believe that it was on solid ground in doing so.” (citations omitted)); id. at 2216 (“Insofar as West Lynn Creamery, Inc. is our guide, it emphasizes one linkage factor we have identified above: simultaneity. The Court relied on the political dynamics of the enactment of the taxing and spending measures as the glue that held them together for constitutional purposes.” (citations omitted)); id. at 2217 (“Perhaps the principal practical teaching of West Lynn Creamery, Inc.—although it is one that is implicit rather than explicit—lies in the notion that simultaneity is a central factor in subsidy cases.”).

133 See supra note 74 and accompanying text.

134 See ME. REV. STAT. ANN. tit.22, § 2697 (West Supp. 2002). This provision was also struck down by the district court, but was not part of the appeal to the First Circuit.

135 See id. § 2693 (permitting the establishment of maximum retail prices for prescription drugs after 2003).

136 See supra notes 111-113 and accompanying text.

137 See Coenen & Hellerstein, supra note 6, at 2218-19.

138 Cooley v. Bd. of Wardens, 53 U.S. 299 (1851).

139 Camps Newfound/Owatonna, 520 U.S. at 571 (noting that the power to regulate commerce was given to Congress “[b]ecause each State was free to adopt measures fostering its own local interests without regard to possible prejudice to nonresidents” and that its adoption “had immediately effected a curtailment of state power” even in the absence of congressional action).

140 W. Lynn Creamery, Inc., 512 U.S. at 200 (“[W]hen a nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a State's political processes can no longer be relied upon to prevent legislative abuse, because one of the in-state interests which would otherwise lobby against the tax has been mollified by the subsidy.”).

141 See, e.g., Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 580 (1986) (“While a State may seek lower prices for its consumers, it may not insist that producers or consumers in other States surrender whatever competitive advantages they may possess.”).

142 See supra notes 116-117 and accompanying text.

143 See supra note 116 and accompanying text.

144 Coenen & Hellerstein, supra note 6, at 2195.

145 See Maine v. Taylor, 477 U.S. 131, 138 (1986) (“[O]nce a state law is shown to discriminate against interstate commerce either on its face or in practical effect, the burden falls on the State to demonstrate both that the statute serves a legitimate local purpose, and that this purpose could not be served as well by available nondiscriminatory means.”).

146 Taylor, 477 U.S. at 151-52 (upholding Maine statute prohibiting importation of live baitfish from out-of-state).

147 PhRMA v. Concannon, 249 F.3d 66 (1st Cir. 2001), cert. granted, 122 S. Ct. 2657 (U.S. June 28, 2002) (No. 01-188).

148 The market-participant exception to the dormant Commerce Clause doctrine permits states to discriminate against interstate commerce if the state is merely acting as an ordinary participant in a particular market, as opposed to a governmental regulator. See Reeves, Inc. v. Stake, 447 U.S. 429 (1980); Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976); see generally BITTKER, supra note 3, at §§ 7.01-7.07; CHEMERINSKY, supra note 3, at § 5.3.7.2; TRIBE, supra note 44, at § 6-11; Dan T. Coenen, Untangling the Market-Participant Exception to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989).

149 Concannon, 249 F.3d at 80.

150 In New Energy Co. of Ind. v. Limbach, Ohio argued that its discriminatory tax exemption was constitutional because it was acting to participate in the market for alternative fuels by subsidizing its in-state production. 486 U.S. 269, 277 (1988). Justice Scalia responded:

Id. at 277-78.

151 In S. Cent. Timber Dev., Inc. v. Wunnicke, the Court struck down an Alaska regulation that conditioned the sale of state-owned timber on the local processing of that timber prior to export from the State. 467 U.S. 82, 98 (1984). In a plurality opinion, Justice White refused to apply the marketparticipant doctrine to the timber sale. Id. He found that Alaska was not participating in the timber processing market; it was participating in the timber sale market. Id. Justice White wrote:

Id. at 97-98.

152 See supra note 3.

153 As noted in McCulloch v. Maryland:

17 U.S. 316, 435 (1819); see also U.S. Term Limits v. Thornton, 514 U.S. 779, 822 (1995).

Id.; see also CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 42 (1969) (arguing that “the very structure of the relation between the national representatives and his constituency, there arises a compelling inference of some national constitutional protection” against certain “state infringement[s]”); Denning, supra note 3 (arguing that the dormant Commerce Clause can be located in a similar structural relationship).

154 Cooley v. Bd. of Wardens, 53 U.S. 299, 319 (1851) (stating “[w]hatever subjects of this power [to regulate commerce] are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of a nature as to require exclusive regulation by Congress”).

155 Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935). “The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Id.

156 H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533-34, 537-38, 539 (1949).

Id. at 533-34.