Dormant commerce clause

Question 1

What is the dormant commerce clause?

Answer 1

Under the dormant commerce clause, if congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate so long as the state/local action does NOT

1) Discriminate against out of state commerce; OR
2) Unduly burden interstate commerce; OR
3) regulate wholly out of state activity.

Question 2

What level of scrutiny is a state law that discriminates against interstate commerce?

Answer 2

A state law that discriminates against interstate commerce in a way that operates as a tariff or trade barrier against out of state interests is subject to strict scrutiny. (presumed unconstitutional and state must show that it is narrowly tailored to serve a compelling government interest).

Question 3

How is the constitutionality of a nondiscriminatory (but burdensome) state law evaluated?

Answer 3

A nondiscriminatory state law that imposes an incidental burden on interstate commerce will be unconstitutional if the burden it imposes is clearly excessive in relation to the putative local benefit.
(Pike Balancing test used)

Question 4

What is the pike balancing test for burdensome state commerce laws?

Answer 4

The state must show that:
1) the law has a legitimate objective
2) the law is rationally related to that objective and
3) the burden on interstate commerce is not clearly excessive as compared to local benefit.

Question 5

If a state law violates the dormant commerce clause, what 3 exceptions will allow the law to prevail?

Answer 5

1) The state is a market participant (not a regulator)
2) The legislation favors state/local government entitles performing a traditional government function.
3) Congress explicitly permits the law.