Constitutional Law I
Dormant Commerce Clause
- Calculated to effect (not a pretext)
- Not prohibited
- Four categories for dormant commerce clause prohibition:
- Facial discrimination – strict scrutiny
- Exceptions:
- Strict scrutiny
- Level playing field
- Public function
- Subsidy
- Market participant
- Congress approves state discrimination
- 21st Amendment (according to a minority of justices)
- Exceptions:
- Discriminatory purpose – strict scrutiny
- Burden on interstate commerce – balancing test (Pike)
- Facial discrimination – strict scrutiny
- Other Constitutional prohibitions
- Privileges and Immunities Clause of Article IV
- Federal statute
- State constitution
- Law of nature
- Four categories for dormant commerce clause prohibition:
Taxation of Interstate Commerce
The dormant commerce clause also limits the power of states to tax interstate commerce.
If there is facial discrimination or a discriminatory purpose, such taxes will be subject to strict scrutiny.
If there is a discriminatory effect or an incidental burden, the Complete Auto test will apply, looking at four factors:
- Substantial nexus between the activity and the state
- Fair apportionment
- Absence of discrimination against interstate commerce
- Fair relation to the state services