Dormant Commerce Clause and Privileges and Immunities

Question 1

Does the state or local govt action discriminate against out-of-staters. (Dormant Commerce)
- If Yes

Answer 1

The state or local action violates the Dormant Commerce Clause if

• It burdens interstate commerce; and
• It is not necessary to achieve an important government purpose,

(lessor discriminatory way to acheiving result)

EXCEPT if

• Congress approves the action; or
• The state or local government acts as a market participant.

Question 2

Does the state or local govt action discriminate against out-of-staters (Dormant Commerce Clause)
- If no

Answer 2

The state or local action violates the Dormant Commerce Clause if

• It burdens interstate commerce; and
• The burdens on interstate commerce outweigh the benefits of the action.

Question 3

Dormant Commerce Clause

Answer 3

prohibits states from unduly interfering with interstate commerce

• Applies and restricts states even if Congress hasn’t acted yet.

Question 4

Facially Discriminate

Answer 4

Discriminate on its face.

Question 5

“As-Applied”

Answer 5

law discriminates in effect.

• Either purpose or effect then can be discrimination

Question 6

Does the state or local govt action discriminate against out of staters (PI)
- If Yes

Answer 6

•It discriminates against out-of-staters with regard to civil liberties or important economic interests; and

(Commercial License- Important economic interest)

(Recreational License- not important economic interest)

•It is not necessary to achieve an important government purpose

Question 7

Does the state or local govt action discriminate against out of staters (PI)
- If No

Answer 7

Privileges and Immunities does not apply