Also known as: dormant commerce analyses · dormant commerce clause analysis · dormant commerce clause
Written by attorneys · grounded in primary & secondary sources — see below
A method of constitutional review under which courts examine state laws for facial discrimination against or undue burdens on interstate commerce when Congress has not enacted legislation on the subject. The analysis presumes invalidity for laws that discriminate on the basis of origin unless the state demonstrates a legitimate non-economic local interest and the absence of reasonable nondiscriminatory alternatives. It also recognizes exceptions when the state acts as a market participant, directs waste to public facilities, or receives express congressional authorization to discriminate.
Diego Duarte, an out-of-state bait supplier, challenges State X's total ban on importing live baitfish. The state shows the ban protects local lakes from invasive species and that no less restrictive inspection regime exists. The court upholds the law because the measure serves an important non-economic ecological interest without reasonable nondiscriminatory alternatives.
Dawson Steel ships hazardous waste from out of state to a landfill in State Y. State Y charges Dawson twice the fee it charges in-state generators for identical disposal. The court invalidates the surcharge because the origin-based cost differential discriminates against interstate commerce without justification.
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Deanna Davenport owns an out-of-state winery and seeks to ship directly to consumers in State Z. State Z permits only in-state wineries to make such shipments. The court holds the restriction violates the dormant commerce clause because it constitutes economic protectionism not saved by the Twenty-First Amendment.
Delta Dynamics, an out-of-state recycler, offers scrap metal to State W at market rates. State W buys only from residents at above-market prices and refuses Delta's offer. The court upholds the program because the state is participating in the market rather than regulating it.
Dillon Energy hauls commercial waste and prefers a cheaper private out-of-state facility. State V requires all haulers to deliver waste to a state-created public authority. The court applies lenient review and upholds the ordinance because the favoritism advances legitimate public objectives rather than protectionism.
Devon Drake ships nuclear waste from out of state into State U. State U imposes a congressionally authorized surcharge on out-of-state nuclear waste. The court sustains the fee because express congressional permission removes the dormant commerce clause barrier.
A facially discriminatory state law survives if it serves a legitimate and important non-economic local interest such as protecting ecological resources and there are no reasonable nondiscriminatory alternatives.
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Yes. When a state buys or sells goods as a market participant rather than regulating the market, it may favor its own citizens without violating the dormant commerce clause.
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Express congressional authorization permits states to discriminate against interstate commerce in specified ways, removing the dormant commerce clause prohibition.
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Such ordinances receive more lenient review and are upheld when they favor a government-owned facility performing a traditional public function because the favoritism is presumed to serve legitimate public objectives.
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…cases do not teach that we have no role at all in determining the meaning of the Commerce Clause. Our position in enforcing the dormant Commerce Clause is instructive. The Court's doctrinal approach in that area has likewise "taken some turns." Oklahoma Tax Comm'n v. Jefferson Lines, Inc., ante , at 180. Yet in contrast to the prevailing…