Also known as: interstate commerce · foreign commerce · commerce clause
Written by attorneys · grounded in primary & secondary sources — see below
Transactions, activities, or movements of goods, persons, or information that cross state or national boundaries. This category supplies the constitutional foundation for congressional regulatory power and constrains state laws that discriminate against or unduly burden cross-border economic activity.
Select any source to read its text and confirm it supports the definition.
Maine enacts a statute forbidding any person from shipping live baitfish harvested in state waters to buyers in other states. A Maine supplier who previously sold to Massachusetts retailers challenges the ban. The court invalidates the statute because it blocks the flow of an article of commerce solely to shield in-state purchasers from out-of-state competition.
A county requires all solid waste generated within its borders to be delivered to a county-owned transfer station rather than to any private hauler. A private waste company sues, claiming the ordinance discriminates against interstate commerce. The court upholds the ordinance because it directs waste to a public facility performing a traditional governmental function and is therefore subject to more lenient review.
Congress amends the Fair Labor Standards Act to cover employees of state and local governments. A state highway department refuses to pay overtime, arguing that traditional governmental functions are immune from federal commerce power. The court rejects the immunity claim and holds that states must comply because their protection lies in the political process rather than judicial limits on federal authority.
Congress passes a statute expressly permitting states to impose higher disposal fees on out-of-state nuclear waste. New Jersey enacts such a surcharge. An out-of-state generator challenges the fee as discriminatory. The court upholds the surcharge because Congress has expressly authorized the discrimination, removing any Dormant Commerce Clause objection.
Washington imposes an unemployment-compensation tax on commissions earned by an out-of-state shoe company's resident salesmen who solicit orders filled from Missouri. The company argues the tax burdens interstate commerce. The court sustains the tax, finding that Congress has authorized states to apply such levies even to activities in interstate or foreign commerce.
The President approves a code fixing wages, hours, and sales practices for New York poultry dealers whose chickens arrive from out of state. A dealer convicted of violating the code challenges its application. The court holds that the code exceeds Congress's commerce power because the regulated slaughter and local sales do not constitute interstate or foreign commerce.
A state law violates the clause when it discriminates against interstate or foreign commerce on its face or in purpose, or when it imposes an undue burden on such commerce. Export bans protecting local buyers and import restrictions blocking out-of-state waste are classic examples of forbidden discrimination.
Supporting sources
Yes. When Congress expressly permits states to impose differential treatment, such as surcharges on out-of-state nuclear waste, the resulting state action does not violate the Dormant Commerce Clause.
Supporting sources
…law to make payments to an unemployment fund shall be relieved from compliance therewith on the ground that he is engaged in interstate or foreign commerce, or that the State law does not distinguish between employees engaged in interstate or foreign commerce and those engaged in intrastate commerce.” It is no longer debatable that Congress,…