Dormant Commerce Clause Flashcards
Discrimination in practical effect against out of state actors
What is the market participant exception to the DCC
when a state acts as a market participant, it may discriminate between in-state and out-of-state businesses
-states are market participants when they are the party that is buying the good or service in question
May states create laws pertaining to interstate commerce
When congress hasn’t enacted legislation, the states are free to regulate local transactions affecting interstate commerce subject to limitations
What types of state laws regarding commerce are discriminatory?
State laws are discriminatory if the state law discriminates on its face or in practical effect between in-state and out-of-state economic actors
What is the test applied to discriminatory legislation?
Legislation that’s discriminatory on its face or in practical effect is subject to strict scrutiny, such that the state must show both:
1. regulation serves a comelling state interest
2. regulation is narrowly tailored to serve that interest
When do state regulations discriminate in practical effect
State laws discriminate in practical effect if they favor an in-state industry over an out-of-state industry
What is test applied to state laws that only incidentally burden interstate commerce
Law will be upheld unless the burden imposed on interstate commerce clearly outweighs the local benefits
When would a regulation the explicitly discriminates against non-residents not be a violation of the commerce clause
Only if the law is narrowly tailored to meet a compelling, non-protectionist purpose
What is the general rule regarding the Dormant Commerce Clause
States cannot discriminate against out-of-state economic actors
Can congress affirmatively authorize states to legislate in areas that would otherwise violate the DCC
Yes
