Dormant Commerce Clause

1
Dormant Commerce Clause A judicially created
doctrine (not in the Constitution) for the court
to contend that there are some things the states
cant do, specifically passing protectionist
legislation... Is there state action (not
Federal) action?
Yes
No
No Dormant Commerce Clause Claim
Is it a regulation? OR Is
the state a market participant?
This is an exception to the rule. If the state is
a market participant the DCC is not applied b/c a
state may favor local citizens over out-of-state
economic interests
Is it Facially Dicriminatory?
Yes
No
STRICT SCRUTINY
Is there a legitimate state interest that is not
protectionist?
UNCONSTITUTIONAL
No
Yes
CONSTITUTIONAL
Does it discriminate against out of staters?
No
Yes
Is the means rationally related?
Yes
No
BALANCING TEST Is the burden outweighed by the
objective?
Yes
No
2
Privileges Immunities Clause (Article IV,
2) The citizens of each state shall be entitled
to all P Is in the several states. Is the
state discriminating against out-of-staters? That
is, denying fundamental rights to out-of-staters
that it provides its own citizens.
YES
NO

• No Article IV
• P I Claim.
• Remember that the P I of the 14th A
• was essentially made irrelevant by the
• Slaughterhouse Cases in 1873.

Is the right fundamental to Interstate Harmony?
NO
YES
Does the overt discrimination (not just
causing an incidental effect) against out of
staters bear a substantial relationship to the
problem the statute is attempting to resolve?
CONSTITUTIONAL
UNCONSTITUTIONAL
(Heightened) INTERMEDIATE SCRUTINY APPLIES
Yes
No
Remember - Corporations and aliens are not
protected by this Clause.
But, corporations and aliens are protected by
the Equal Protection and Due
Process Clauses of the 14th A. - Only rights
fundamental to national unity are covered (to
be employed, engage in business, practice ones
profession) - There is no market participant
exception to the P I Clause