13. Dormant Commerce Clause

Question 1

What are the exceptions preventing states regulating interstate commerce despite Congress’ consent?

Answer 1

Preempted by federal law (Supremacy Clause)

Direct conflict with federal law (Supremacy Clause)

Federal law intent to preoccupy entire field

• Pervasiveness of federal law
• Uniformity need of law re field
• Similarity of federal + state laws
• Historically federal/state law

Constitution violation

• Equal protection
• P&I

Question 2

What are the exceptions allowing states to regulate interstate commerce despite discriminating against interstate commerce?

Answer 2

‘Narrowly tailored’ to achieve important non-economic state interest (Intermediate scrutiny)

• Health/Safety
• Morals
• Welfare

State acting as market participant

Performing traditional governmental function (more lenient standard)
- E.g. trash collection

Question 3

What are the exceptions allowing states to regulate interstate commerce despite unduly burdening interstate commerce (treating public and private interests differently)?

Answer 3

Narrowly tailored to achieve important government interest (Intermediate scrutiny)

Promotion of legitimate government interest outweighs burden
- Protect citizens

Regulating internal governance of companies
- Likely upheld due to State’s long history of doing so

Question 4

What type of liquor regulations (21A) are subject to Dormant Commerce Clause?

Answer 4

Interstate commerce (state has wide powers)

• Conditions on ‘sale/use’
• ‘Imported’ liquor
• E.g. Discriminatory in favour of local liquor manufacturers

Intrastate commerce