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Cases dealing with congressional authorization of otherwise impermissible state interference with interstate commerce have generally required an 'express' statement of such authorization, and it is rare when such authorization may be implied.

Most of the Supreme Court cases have looked for an express statement of congressional policy prior to finding that state regulation is permissible. For example, in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 458 U. S. 958-960 (1982) the Court declined to find congressional authorization for state-imposed burdens on interstate commerce in ground water despite 37 federal statutes and a number of interstate compacts that demonstrated Congress' deference to state water law. The court noted that, on those occasions in which consent has been found, congressional intent and policy to insulate state legislation from Commerce Clause attack have been 'expressly stated.' 458 U.S. at 458 U. S. 960. Similarly, in New England Power Co. v. New Hampshire, 455 U. S. 331 (1982), the court rejected a claim by the State of New Hampshire that its restriction on the interstate flow of privately owned and produced electricity was authorized by § 201(b) of the Federal Power Act. That section provides that the ...

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