Constitutional Law: Federalism: Dormant Commerce Clause

  • Dormant Commerce Clause – state or local law is unconstitutional if it places an excessive burden on interstate commerce. The DCC is the Commerce power reserved to the states.
    • The federal government has plenary power to regulate interstate commerce. But where Congress is silent, the states are free to regulate.
    • State regulation of interstate commerce is valid if:
      • State regulation is non-discriminatory AND
      • There’s no undue burden on interstate commerce.
      • Non-discriminatory – a state may not discriminate against interstate commerce in favor of its own local interests. A state may act as a market participant, not as a market regulator.
        • EX: State law intended to further a legitimate objective – but produces a discriminatory effect. Must be achieved by least restrictive means available.
        • EX: NJ forbade importation of out of state waste because # of available disposal sites = precious natural resource. PA garbage collectors, thus, are at a competitive disadvantage. SCOTUS said NJ cannot discriminate against out of state rubbish in favor of local trash. NJ can tax, require a license, move dumpsites, but not forbid.
        • EX: NC law – all apples sold in NC with sticker no higher than U.S grade. NC law damaging WA apple dealers with a competitive advantage = discriminatory effect.
        • EXCEPTION: Market Participant Exception – where state may discriminate without violating DCC.
          • State used own taxpayer funds to create market for cement à gave hiring preferences and subsidies to local residents in favor of out of state persons. State uses its own money to create market.
      • Undue Burden – States may not unduly burden interstate commerce. Courts use a balancing test. They weigh the state interest in regulation against the burden on interstate commerce.
        • EX: SC law imposed with restriction on trucks using highways in SC – safety interest, but large trucks couldn’t travel on highways. But SC safety restrictions upheld.
        • EX: Ill required that all trucks have contour mud guards – the state interest was that contour mud guards kicked up less debris. Undue burden argument because truckers were going to have to change mud guards. Court said that safety regulations were marginal. Law is unconstitutional.