Also known as: discriminating against interstate commerce · discriminates against interstate commerce · discriminatory against interstate commerce · dormant commerce clause discrimination · interstate commerce discrimination
Written by attorneys — see sources below.
A state or local measure that treats out-of-state economic actors or goods less favorably than their in-state counterparts. The principle triggers strict scrutiny under the dormant commerce clause and is presumptively invalid unless the state demonstrates a legitimate nonprotectionist purpose that cannot be achieved by nondiscriminatory means.
The city of Riverton enacts an ordinance directing all solid waste generated within city limits to a designated local processing plant. Drake Logistics, an out-of-state hauler, is barred from taking the waste across state lines for cheaper disposal. The ordinance blocks Drake from competing for the business and raises its costs.
State forestry officials sell harvested timber to Dawson Steel at a public auction. The sales contract requires Dawson to mill all timber inside the state before any interstate shipment. Dawson had planned to ship raw logs to an out-of-state mill offering lower rates. The condition prevents Dawson from choosing the cheaper out-of-state processor.
Missouri's hazardous-waste board charges Bay Learning, a Kansas college, twice the fee it charges in-state schools for identical lab waste. Bay Learning ships its waste across the border for disposal. The differential fee increases Bay Learning's operating costs solely because its waste originates outside Missouri.
Oneida County directs all commercial waste to its publicly owned processing plant. Delta Dynamics, a private out-of-state hauler, loses contracts because local businesses must use the county facility. The ordinance channels waste to the public operator even though Delta's services are comparable.
Oklahoma prohibits the export of minnows caught in state waters. Delilah Duran, an out-of-state bait dealer, can no longer purchase Oklahoma minnows for resale in neighboring states. The ban reserves the entire supply for in-state buyers and eliminates Duran's access to the resource.
Oklahoma is one of 23 states having statutes that prohibit or severely restrict the exportation of minnows taken from waters within the state. The challenged provision, Okla. Stat., Tit. 29, § 4-115 (B), states that no person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state, though the prohibition does not apply to minnows raised in a regularly licensed commercial minnow hatchery. William Hughes holds a license from Oklahoma to operate a commercial minnow hatchery and to sell minnows, and he also holds a Texas license to operate a commercial minnow business near Wichita Falls, Texas. In 1973, Hughes was arrested by an Oklahoma game ranger and convicted in Oklahoma state court of violating the statute by transporting 250 pounds of live minnows from Oklahoma to Texas. The minnows had been purchased from a minnow farm near Weatherford, Oklahoma, and were being transported to a buyer in Wichita Falls, Texas; Hughes was fined $200 and court costs. Hughes' conviction was affirmed by the Oklahoma Court of Criminal Appeals in an unreported opinion that relied on Geer v. Connecticut. Hughes then brought this action in the United States District Court for the Western District of Oklahoma under 42 U.S.C. § 1983, seeking a declaration that § 4-115 (B) was unconstitutional and an injunction against its enforcement. A three-judge District Court granted summary judgment for the appellees. The Supreme Court noted probable jurisdiction over the appeal.
View caseSouth Carolina imposes an annual fee on interstate trucks that exceeds the fee charged to local carriers. Damian Decker, an out-of-state driver, must pay the higher charge to use state highways for deliveries. The fee raises Decker's costs for crossing the state while leaving in-state operators unaffected.
Congress may expressly permit states to discriminate against interstate commerce. Once Congress grants clear authorization, the dormant commerce clause no longer bars the state action. Courts then evaluate only whether Congress acted within its commerce power.
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A state may favor its own residents in the immediate sale. It may not attach conditions that force buyers to perform later commercial steps inside the state. Such downstream mandates regulate post-sale activity and violate the dormant commerce clause.
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These ordinances favor a government-owned provider performing a traditional public function. Courts apply a less rigorous test because the measure is presumed to advance legitimate public objectives rather than economic protectionism.
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…not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, supra , 234 U. S. at 326 and cases cited, pp. 328-329 ; cf. South Carolina Highway Dept. v. Barnwell Bros. , 303 U. S. 177 . Had the corporation…