The dormant Commerce Clause is the negative implication of the grant of commerce power to Congress. Even where Congress has not acted, states may not use their own laws to protect local business from out of state competition or to burden the national market. The doctrine is judicially inferred rather than written down, and it does most of its work against state protectionism dressed up as health, safety or conservation.
Rule
- Step one. Ask whether the state law discriminates against interstate commerce, on its face, in purpose, or in effect.
- Discriminatory laws. Virtually per se invalid. The state must show a legitimate local purpose that cannot be served by reasonable non-discriminatory alternatives.
- Non-discriminatory laws. Upheld unless the burden on interstate commerce is clearly excessive in relation to the local benefits, the Pike balancing test.
- Market participant exception. A state acting as a buyer or seller rather than a regulator may favor its own residents.
- Congressional consent. Congress may authorize state laws that would otherwise fail, because the restriction protects a power that belongs to Congress.
Leading cases
- City of Philadelphia v. New Jersey: a ban on importing out of state waste was invalid, because it isolated the state from a problem common to many by discriminating against articles of commerce by origin.
- Pike v. Bruce Church, Inc.: where a statute regulates evenhandedly and its effects on interstate commerce are incidental, it stands unless the burden is clearly excessive relative to the local benefit.
- Granholm v. Heald: state schemes permitting in state wineries to ship directly to consumers while barring out of state wineries discriminated against interstate commerce.
Where students go wrong
The first mistake is starting with balancing. Discrimination comes first, and it decides the case far more often, because a discriminatory law almost never survives.
The second is missing discrimination in effect. A law that never mentions origin can still fall if in practice it burdens out of state actors and shields local ones.
The third is forgetting the market participant exception. When the state is spending its own money or selling its own goods, the doctrine largely steps aside.
FAQ
Where is the dormant Commerce Clause in the Constitution?
Nowhere explicitly. Courts infer it from the affirmative grant of commerce power to Congress and from the structural interest in a single national market.
Can Congress override it?
Yes. Because the doctrine protects congressional power, Congress may consent to state laws that would otherwise be invalid.
How is it different from the Privileges and Immunities Clause?
Article IV's clause protects individual citizens against discrimination in fundamental rights and does not cover corporations or aliens, and it has no market participant exception.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.