LAW 531-001 – Constitutional Law I

Dormant Commerce Clause


  1. Calculated to effect (not a pretext)
  2. Not prohibited
    1. Four categories for dormant commerce clause prohibition:
      1. Facial discrimination – strict scrutiny
        • Exceptions:
          1. Strict scrutiny
          2. Level playing field
          3. Public function
          4. Subsidy
          5. Market participant
          6. Congress approves state discrimination
          1. 21st Amendment (according to a minority of justices)
      2. Discriminatory purpose – strict scrutiny
      3. Discriminatory Effect

        A state or local statute with a discriminatory effect on out-of-state commerce is invalid if it is unduly burdensome, meaning the burden placed on interstate commerce outweighs the benefits to be gained. Southern Pacific.

      4. Burden on interstate commerce – balancing test (Pike)
    2. Other Constitutional prohibitions
    3. Federal statute
    4. State constitution
    5. Law of nature

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:

  1. Substantial nexus between the activity and the state
  2. Fair apportionment
  3. Absence of discrimination against interstate commerce
  4. Fair relation to the state services