Dormant Commerce Clause and Privileges and Immunities Clause

Question 1

When the DC and P&I Clauses are at Issue

Answer 1

When you are dealing with state or local economic regulation.

Question 2

Dormant Commerce Clause Test (Step One)

Answer 2

Whether a state or local law or regulation impermissibly burdens interstate commerce and thus violates the dormant commerce clause. A law violates the clause if it either:

(1) discriminates against out of state competition to benefit local economic interests; or
(2) unduly burdensome - the legitimate local benefits do not outweigh the incidental burden on interstate commerce.

Question 3

Dormant Commerce Clause Exceptions (Step Two)

Answer 3

A discriminatory state or local law may be upheld if it furthers an important non-economic state interest (such as health or safety), and there are no reasonable nondiscriminatory alternatives.

The second is that, if the state or local body is a market participant, it may prefer its own citizens by charging reasonably higher fees, for example, but not by instituting an outright ban on out of state commerce.

Question 4

Privileges and Immunities Clause (Step Three)

Answer 4

This clause prohibits discrimination by a state against noncitizens as to fundamental rights. Fundamental rights are limited to civil liberties, such as those in the first, second, fourth, fifth, and sixth amendments, and commercial activities, such as the right to earn a living.

Corporations are not protected.