Also known as: protectionist measures · protectionism
Written by attorneys · grounded in primary & secondary sources — see below
A state law or regulation that discriminates against interstate commerce by favoring in-state economic interests over out-of-state competitors. Such measures are virtually per se invalid under the dormant Commerce Clause except when the law favors a government-owned facility performing a traditional public function.
Pavel Petrov, an in-state wholesaler, contracts to sell live baitfish harvested in his home state to an out-of-state retailer. State officials block the shipment under a statute that prohibits export of the fish whenever in-state buyers claim unmet demand. The court invalidates the statute because it reserves a local natural resource for in-state purchasers and thereby discriminates against interstate commerce.
Premier Manufacturing, an out-of-state winery, seeks to ship wine directly to consumers in a neighboring state. The state permits only in-state wineries to use direct shipping while requiring out-of-state producers to route sales through local wholesalers. The court strikes down the scheme as discriminatory economic protectionism that cannot be justified by the Twenty-First Amendment.
Select any source to read its text and confirm it supports the definition.
Peak Performance Hauling contracts with private landfills outside the state to dispose of construction debris. A county ordinance requires all local waste to be delivered to a newly created public authority that operates its own disposal site. The court upholds the ordinance under lenient review because the measure favors a government-owned facility performing a traditional public function rather than private in-state businesses.
Perry Pratt operates a landfill that accepts solid waste from both in-state and out-of-state generators. A state statute bars out-of-state waste from entering any in-state landfill to preserve capacity for local users. The court invalidates the statute as a protectionist measure that overtly blocks the flow of interstate commerce at the state border.
Pinnacle Holdings, an out-of-state distiller, posts prices in its home state that are lower than those required in the target state. The target state liquor authority demands that the distiller affirm it will not sell at lower prices elsewhere. The court holds the affirmation rule unconstitutional because it effectively regulates out-of-state transactions to shield in-state sellers from competition.
Pierre Poulin, an out-of-state milk processor, pays a state assessment on every gallon sold locally. The proceeds fund a subsidy paid exclusively to in-state dairy farmers. The court strikes down the program because the tax-and-subsidy combination functions as economic protectionism that burdens interstate commerce while benefiting only local producers.
A court examines whether the law is basically a protectionist measure that discriminates against interstate commerce or whether it can fairly be viewed as directed to legitimate local concerns with only incidental effects on interstate commerce. When the statute overtly blocks the flow of interstate commerce at the state's borders or reserves local resources for in-state buyers, it is treated as economic protectionism that is virtually per se invalid.
Supporting sources
Yes. When Congress expressly authorizes states to impose a particular form of discrimination against interstate commerce, the dormant Commerce Clause challenge is defeated. The authorization must be clear and specific to the type of discrimination at issue.
Supporting sources
A flow-control ordinance that favors a government-owned facility performing a traditional public function receives more lenient review and can be upheld. The favoritism is presumed to stem from legitimate public objectives rather than economic protectionism.
Supporting sources
…to the allegedly harmful effects of landfill sites. It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas , 209 U. S. 251; Reid v. Colorado , 187 U. S. 137; Bowman v. Chicago & Northwestern R. Co., supra , at…