Wednesday, May 30, 2012

Dormant Commerce Clause: Advise for Analyzing.

This post will provide the analysis that you should use whenever you come across a Dormant Commerce Clause issue, either on an essay, or on the MBE.

First, the Dormant Commerce Clause applies to state action. It's implicated when Congress has not enacted laws regarding a specific subject, and a state or local government wants to regulate on the subject, and the regulation will affect interstate commerce.

First ask whether the state regulation discriminates against interstate commerce. Realize that even though Congress has not acted, the default rule is that the state can not regulate, if the regulation discriminates against interstate commerce. There are exceptions to this rule, but you should always lay out the general rule before stating the exceptions.

If the state regulation discriminates against interstate commerce, the regulation will be invalid unless it furthers an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives.


The state is acting as a market participant (for example if the state is hiring labor, and the regulation relates to the hiring of labor).


The regulation involves government action regarding the performance of a traditional government function (for example, waste disposal).

Let's now assume that the state regulation does not discriminate against interstate commerce. If the non-discriminatory regulation does not burden interstate commerce, there is no Dormant Commerce Clause issue. If, however, the non-discriminatory regulation does burden interstate commerce, then it will be valid only if the burden does not outweigh the state's interest in the action.

Strictly apply the above analysis to earn maximum points on an essay on this issue, and to analyze correctly MBE questions testing this issue.

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