Dormant Commerce Clause
The Dormant Commerce Clause is a judicial doctrine inferring from the Commerce Clause a negative prohibition against state laws that discriminate against or unduly burden interstate commerce, even when Congress has not acted.
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Exam Tip
Dormant Commerce Clause = States cannot discriminate against interstate commerce. Discriminatory = per se invalid. Neutral = Pike balancing. Exception: Market participant.
What is the Dormant Commerce Clause?
The Dormant Commerce Clause restricts states from passing legislation that improperly burdens or discriminates against interstate commerce, even when Congress has not legislated.
Two-Tier Analysis
| Type of Law | Standard | Outcome |
|---|---|---|
| Discriminatory | Virtually per se invalid | Almost never upheld |
| Non-discriminatory | Pike balancing test | Usually upheld |
Pike Balancing Test (1970)
"Where the statute regulates even-handedly... it will be upheld unless the burden on commerce is clearly excessive in relation to the putative local benefits."
Landmark Cases
- Philadelphia v. New Jersey (1978): Ban on out-of-state waste discriminatory
- Pike v. Bruce Church (1970): Established balancing test
- Maine v. Taylor (1986): Rare valid discriminatory law (ecological protection)
Exceptions
| Exception | Description |
|---|---|
| Congressional Approval | Congress can authorize discrimination |
| Market Participant | State as buyer/seller may favor locals |
| Subsidies | Direct subsidies generally allowed |