Also known as: Negative Commerce Clause · DCC
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine inferred from the Commerce Clause that prohibits states from discriminating against or unduly burdening interstate commerce even when Congress has not acted. The doctrine requires courts to examine whether a state law is facially discriminatory and, if so, whether it serves a legitimate local interest that cannot be achieved by nondiscriminatory means.
Delilah Duran operates a fishing supply business that imports live baitfish from out of state. The state enacts a ban on such imports to protect local waterways from invasive species. Duran sues, claiming the ban burdens interstate commerce. The court upholds the ban because the state demonstrates a vital ecological interest and no practical nondiscriminatory alternative exists.
Dillon Energy ships hazardous waste from its out-of-state operations to a disposal site in the regulating state. The state charges Dillon Energy a higher per-ton fee than it charges in-state generators for identical services. Dillon Energy challenges the fee differential. The court invalidates the surcharge because origin-based cost differences are presumptively invalid under the doctrine.
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Dover Bank finances several out-of-state wineries that wish to ship directly to consumers in the regulating state. The state permits only in-state wineries to make such shipments. The out-of-state wineries sue. The court holds the restriction violates the doctrine because it constitutes economic protectionism not saved by the Twenty-First Amendment.
Dakota Industries sells scrap metal to the state government. The state pays higher prices to in-state sellers and offers lower prices to out-of-state sellers. Dakota Industries sues under the doctrine. The court upholds the pricing scheme because the state is participating in the market rather than regulating it.
Desert Oil generates solid waste that it wishes to send to a private out-of-state facility. A county ordinance requires all waste to be delivered to a government-owned processing plant. Desert Oil challenges the ordinance. The court applies lenient review and upholds the measure because it favors a public facility performing a traditional government function.
Dorothy Daniels manages a nuclear waste facility that receives out-of-state shipments. A state statute imposes a surcharge on those shipments pursuant to a federal statute that expressly permits such fees. Daniels sues, arguing the surcharge burdens interstate commerce. The court rejects the challenge because Congress has expressly authorized the discrimination.
A facially discriminatory state law may survive if it serves a legitimate and important non-economic local interest such as protecting ecological resources and no reasonable nondiscriminatory alternatives exist. Courts apply this exception narrowly and require the state to demonstrate both the importance of the interest and the absence of less restrictive means.
Yes. A state violates the doctrine when it imposes higher disposal fees or surcharges on out-of-state waste than on identical in-state waste. Such origin-based cost differentials are presumptively invalid absent congressional authorization.
Yes. When Congress expressly authorizes states to discriminate against interstate commerce in specified ways, the authorized state action does not violate the doctrine. The authorization must be clear and targeted to the particular form of discrimination at issue.
…of federal regulation under the commerce power. When cases involving these laws first reached this Court, we imported from our negative Commerce Clause cases the approach that Congress could not regulate activities such as "production," "manufacturing," and "mining." See, e. g. , United States v. E. C. Knight Co. , 156 U. S. 1, 12 (1895)…