# Bethlehem Steel Corp. v. Board of Commissioners

> California Court of Appeal · September 18, 1969 · 276 Cal. App. 2d 221

URL: https://www.frixlaw.com/law-library/cases/9734505

## Case

- **Full name:** BETHLEHEM STEEL CORPORATION, Plaintiff and Appellant, v. BOARD OF COMMISSIONERS OF THE DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS ANGELES Et Al., Defendants and Respondents
- **Court:** California Court of Appeal
- **Decided:** September 18, 1969
- **Citations:** 276 Cal. App. 2d 221; 80 Cal. Rptr. 800; 1969 Cal. App. LEXIS 1795
- **Precedential status:** Published
- **Opinion:** Concurrence
- **Judges:** Stephens
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734505

## How later opinions describe it (automated extraction)

- holding unconstitutional a California “Buy American Law” that awarded state construction contracts only to companies that agreed to use American-made products
- holding state “Buy American” statute unconstitutional because it interfered with federal foreign affairs power, emphasizing its effect on foreign commerce
- holding that a California “Buy American” statute violated the foreign affairs power

## Opinion text

opinion holding the California Buy American Act (Gov. Code, §§ 4300-4305) unconstitutional as an undue interference with the federal government’s conduct of foreign relations. I desire to add a few supplementary observations.
Juxtaposition of the text of the California Buy American Act alongside those of GATT and the Trade Agreements Act ( 19 U.S.C.A. § 1351 ) as amended and extended, 1 not only makes manifest the seriousness of the potential, if not presently actual, interference by California with the federal government’s power to conduct its foreign affairs, 2 but lays bare California’s unconstitutional intrusion into the congressional power “ [t]o regulate Commerce with foreign Nations.” (U.S. Const., art. I, § 8, cl. 3.)
The .power to regulate commerce with foreign nations is an express grant by the people to the federal government. (Gibbons v. Ogden (1824) 22 U.S. (9 Wheat.) 1, 187-189 [ 6 L.Ed. 23, 68 ].) “It is an essential attribute of the power that it is exclusive and plenary. As an exclusive power, its exercise may not be limited, qualified or impeded to any extent by state action. [Citations.] The power is buttressed by the express provision of the Constitution denying to the States authority to lay imposts or duties on imports or exports without the consent of the Congress. Art. 1, § 10, ][ 2. [j[] The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted.” (University of Illinois v. United States (1932) 289 U.S. 48, 56-57 [ 77 L.Ed. 1025 ,1028 ; 53 S.Ct. 509, 510 ].)
*231 “ [T]o regulate' commerce is to prescribe . . . the conditions upon which it shall be conducted; to determine how far it shall be free and untrammeled, how far it shall be burdened by duties and imposts, and how far it shall be prohibited.” Welton v. Missouri (1875) 91 U.S. 275, 279-280 [ 23 L.Ed. 347, 349 ] .)
“The power which insures uniformity of commercial regulation must cover the property which is transported as an article of commerce from hostile or interfering legislation, until it has mingled with and become a part of the general property of the country, and subjected like it to similar protection, and to no greater burdens. If, at any time before it has thus" become incorporated into the mass of property of the State or nation, it can be subjected to any restrictions by state legislation, the object of investing the control in Congress may be entirely defeated.” (Welton v. Missouri, supra, 91 U.S. 275, 281 [ 23 L.Ed. 347, 349 ] ; see also Guy v. Baltimore (1879) 100 U.S. 434, 443 [ 25 L.Ed. 743,746 ].)
Since ‘' commerce with foreign countries ... is of national importance, and admits and requires uniformity of regulation,” no state even in the absence of congressional legislation may intrude into this domain. (Welton v. Missouri, supra, 91 U.S. at p. 280 [ 23 L.Ed. at p. 349 ]; Scandinavian Airlines System, Inc. v. County of Los Angeles (1961) 56 Cal.2d. 11, 23 [ 14 Cal.Rptr. 25 , 363 P.2d 25 ], cert, denied, 368 U.S. 899 [ 7 L.Ed.2d 94 , 82 S.Ct. 175 ].) Absence of congressional enactments may be deemed ‘ ‘ equivalent to a declaration that [the] commerce shall be free and untrammeled.” (Welton v. Missouri, supra, 91 U.S. at p. 282 [ 23 L.Ed. at p. 350 ] .)
Thus state encroachments upon this exclusive and plenary federal power whether in the guise of a licensing requirement (Welton v. Missouri (1875) supra, 91 U.S. 275 [ 23 L.Ed. 347 ] ; Brown v. Maryland (1827) 25 U.S. (12 Wheat.) 419 [ 6 L.Ed. 678 ]), a grant of exclusive privileges or a. franchise (Gibbons v. Ogden (1824) supra, 22 U.S. (9 Wheat.) 1 [ 6 L.Ed. 23 ]), or of inspection and fees therefor (Hale v. Bimco Trading, Inc. (1938) 306 U.S. 375 [ 83 L.Ed. 771 , 59 S.Ct. 526 ]) have been stricken down. Worthy of particular note is that in Hale, the Trade Agreements Act ([June 12, 1934] 48 Stat. 943 , ch. 474, § 1; 19 U.S.C.A. § 1351 ) and the real purpose of the Florida act, being the exclusion of foreign cement because of its unfavorable competitive effect upon domes *232 tically produced cement on the Florida market, were brought to the attention of the court. The California Buy American Act is a statute .'which is no less '‘ clearly designed than [the Florida statute] to circumvent what the. Commerce Clause forbids” (Hale v. Bimco Trading, Inc. (1938) 306 U.S. 375, 380-381 [ 83 L.Ed. 771, 776 , 59 S.Ct. 526, 528 ]).
Reppy, J., concurred.
Appellant’s petition for a hearing by the Supreme Court-was denied November 12, 1969. Mosk, J., was of the opinion that the petition should be granted.
See: 65 Stat. 72 (1951), 67 Stat. 472 (1953) 68 Stat. 360 (1954), 69 Stat. 162 (1955), and 72 Stat. 673 (1958).
As the Acting Presiding Justice has noted, foreign commerce occupies an increasingly larger area of major concern in the foreign relations of our nation, especially during times when the foreign policy is peace-oriented as at present. Regardless of whether GATT has the legal force of a treaty, it is a vane pointing the direction of the executive branch’s foreign trade policy. While the Trade Agreements Act and extensions specifically provide that the act or extensions thereof " shall not be construed to determine or indicate the approval or disapproval by the Congress of the executive agreement known as the General Agreement on Tariffs and Trade [GATT],” it empowered the President to negotiate foreign trade agreements for ' ‘ the purpose of expanding foreign markets for the products of the United States” "whenever he finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening and restricting the foreign trade of the United States.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734505. Public record. Not legal advice.