ArtI.S8.C3.7.4 Modern Dormant Commerce Clause Jurisprudence Generally

Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

In its modern Dormant Commerce Clause jurisprudence, the Supreme Court has applied two primary principles. First, subject to certain exceptions, state and local laws that “discriminate[ ] against out-of-state goods or nonresident economic actors” are considered per se invalid and are generally struck down absent a showing that they are narrowly tailored to advance a legitimate local purpose.1 Second, for laws that regulate “evenhandedly” and are not facially discriminatory, the Court applies a balancing test and upholds laws that serve a “legitimate local purpose” unless the burden on interstate commerce clearly exceeds the local benefits.2 While the Court has acknowledged Congress’s primacy in regulating interstate commerce, it has also asserted its own role in interpreting the scope of that authority.3

The application of these two principles in modern Dormant Commerce Clause jurisprudence has been highly fact-specific. While the Court has articulated a basic framework for reviewing state regulations, it has not successfully defined clear rules that can be consistently applied, resulting in holdings that sometimes appear unpredictable. In particular, some Justices have criticized the balancing test, arguing that facially nondiscriminatory laws should be upheld without the need for balancing.4

Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2461 (2019); Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 338–339 (2008); Granholm v. Heald, 544 U.S. 460, 487 (2005). back
E.g., Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)); Davis, 553 U.S. at 338–339. back
S. Pac. Co. v. Arizona, 325 U.S. 761, 769, 770 (1945) ( “[T]his Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests. . . . [I]n general Congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application . . . .” ). back
See Bendix Autlolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 896 (1988) (Scalia, J., concurring) ( “[Weighing] the governmental interests of a State against the needs of interstate commerce is [a] task squarely within the responsibility of Congress.” ); see also Camps Newfound/Owatonna v. Harrison, 520 U.S. 564, 620, 636–637 (1997) (Thomas, J., dissenting) (describing the Court’s Dormant Commerce Clause jurisprudence as “unworkable,” and arguing that it should be abandoned in favor of considering state taxation laws under the Import-Export Clause); South Dakota v. Wayfair, 138 S. Ct. 2080, 2100 (2018) (Thomas, J., concurring) (arguing that the Court’s Dormant Commerce Clause precent “can no longer be rationally justified” ); Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2477 (2019) (Gorsuch, J., dissenting) (describing the Court’s dormant Commerce Clause doctrine as “peculiar” ). back