How It's Tested: The Dormant Commerce Clause

When I'm working with students, there is often some confusion regarding the differences between the Commerce Clause, and the Dormant Commerce Clause. It's important to keep these areas clear in your mind, though, as this is a heavily tested area within Constitutional Law.

The Commerce Clause provides that Congress has the right to regulate interstate commerce. In other words, it provides a power for the federal government. The Dormant Commerce Clause, on the other hand, limits the power of the states. If Congress has not yet regulated in a certain area, the Dormant Commerce Clause will prevent the states from regulating in that area, provided certain requirements are satisfied. And questions on the MBE will test your knowledge of those requirements.

When reading a fact pattern, you'll first want to determine whether the state regulation (and determining whether a regulation is state or federal is essential when answering Constitutional Law questions) substantially discriminates against interstate commerce. If so, you should immediately consider the possibility that the Dormant Commerce Clause will apply.

But the fact that there is substantial discrimination against interstate commerce by a state government does not mean that the state regulation is unconstitutional. For that regulation to be constitutional, it must pursue a legitimate end, be rationally rationally related to that legitimate end, and the burden imposed by the state on interstate commerce (often measured by the discrimination against interstate commerce), must be outweighed by the state's interest in enforcing the regulation. Quite often on the MBE, the question will turn on that third requirement.

Look for situations in which a state attempts to pass a regulation for the general welfare of its citizens. Oftentimes, such a regulation will easily meet the requirement that the regulation is rationally related to a legitimate end. But that's not enough. Even if the goal is to protect the welfare of state citizens, pay close attention to the effect. Will the effect impose an undue burden on interstate commerce, such that the burden outweighs the intended benefits?

Take, for example, a situation in which a county ordinance states as its intended purpose to reduce traffic congestion, and in doing so regulates which taxicabs may pickup or discharge passengers in the county, by stating that only those cabs registered in the county will be able to do so. Though reducing traffic congestion may well be a legitimate goal, and the regulation is likely rationally related to that goal, the ordinance will fail because whatever benefit is derived from the regulation is outweighed by the discriminatory effect that the regulation has on interstate commerce. Out-of-state competition in the taxicab industry is essentially eliminated.

The result of this type of balance is not always easy to determine, but there are quite a few areas of Constitutional Law that require such an approach, and the more practice questions you do, the easier it'll become.