DORMANT COMMERCE CLAUSE

Dormant Commerce Clause: limit on state's regulatory powers

state and local laws are unconstitutional if they place an undue burden on interstate commerce- no discrimination against out of state commercial interests

21st AMENDMENT

transportation or importation into any state/territory or possession of the US for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is prohibited. states may regulate possession/sale/transportation of LIQUOR within its borders... Does NOT have authority to discriminate against OUT OF STATE LIQUOR

Virtually per se rule

If a law is discriminatory (on its face or in application) against interstate commerce it is almost always going to be invalid unless it satisfies strict scrutiny (quarantine cases are the one that satisfy this)

Dormant commerce clause: if law is nondiscriminatory but has burdensome effects (Balancing Test)

If a law is not discriminatory but has burdensome effects on interstate commerce, then the burdens and benefits must be balanced (Intermediate scrutiny) 3 part analysis (rationality +balancing test) 1. regulation must pursue a legitimate legislative state end 2. regulation must be rationally related to that legitimate state end 3. regulatory burden imposed by the state on the interstate commerce must be outweighed by the state's interest in enforcing its regulation

If the law is not facially discriminatory/protectionist, what is the second question we ask?

Is facially neutral regulation still discriminatory/protectionist in purpose or effect? -If so, we use Strict Scrutiny

What is the first question we ask?

Is the state/local law facially protectionist/discriminatory by its terms against interstate commerce? (blatantly discriminatory) If so, we use Strict Scrutiny and the law is per se invalid. Strict Scrutiny w/Facially Discriminatory State law must have a legitimate local purpose (end) and means necessary to achieve that per pose. -Burden of proof on Government = Must show law necessary + cannot be adequately achieved by any reasonable nondiscriminatory alternatives. -Almost always fatal

Dormant Commerce Clause

Limitations to the states' freedom to regulate transactions affecting interstate commerce where Congress has not enacted legislation

Exceptions to Facially Discriminatory- What is one main exception where we don't use strict scrutiny and instead use the Pike Balancing Test?

Traditional Government Function- facially discriminatory regulation favoring government entities only for activities government historically did

When will state law be held unconstitutional?

When state regulation furthers no apparent benefit and imposes a substantial burden on interstate commerce

Exceptions to the Dormant Commerce Clause

(1) Congressional Approval (2) Market Participant (3) 21st Amendment

If No, to questions 1 and 2, we use the Balancing Test

Balance if law's incidental effects on interstate commerce are clearly excessive in relation to the supposed local benefits. (see above)

Benefits of DCC (Analysis)

Encourages production through open markets, protects out of state citizens from harm imposed w/o a chance for democratic participation, protects national market

Market Participant Exception

NCC does NOT apply state may "discriminate or burden" if state is acting as a BUYER/SELLER of commodities/services/government subsidies...NOT ACTING as a regulator of such A state is a market participant when the government owns a business or provides benefits to a commercial actor through government programs a. can favor in-state purchasers, but cannot attach conditions to a sale that discriminate against interstate commerce (cannot be market regulator) b. can only impose burdens on commerce within the market in which it is a participant under this exception, DCC does not bar different treatment of in-state and out-of-state interest doesn't apply to Natural resources

Congressional Approval

States CAN discriminate against AND/OR excessively burden interstate commerce if Congress gives EXPRESS permission

Dormant commerce clause: if law is discriminatory, on its face, between in state and out of state economic actors...

if law is discriminatory (protectionist-tariffs, quotas, embargos), the state must justify (1) the law as necessary to achieve compelling state interests; and (2) the regulation is narrowly tailored to serve that interest (strict scrutiny) -state carries burden of proof to justify the statute -state must show a compelling interest -methods must be truly necessary to achieve this compelling state interest (if less discriminatory alternative available, then state action is unnecessary)

Dormant Commerce Clause: legitimate vs illegitimate ends

legit: health, general welfare, safety regulations (but not as disguise for protectionist purposes) illegit: discrimination against other states, protectionism