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 · grounded in primary & secondary sources — see 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.
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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.
South 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…