Researching The Dormant Commerce Clause in the 21st Century  

Ben Martin is a third year law student at the Georgia State University College of Law.  He will graduate law school in May 2011.  After completing law school, he will complete a Masters in Taxation in the Georgia State University J. Mack Robinson College of Business.  He is interested in tax law and estate planning.  This online research guide was created as part of an Advanced Legal Research class taught by Professor Nancy Johnson.  For more information, please contact her at njohnson@gsu.edu

Bibliographies on this website were created as part of Nancy Johnson's Advanced Legal Research class.  They are intended to be used for informational purposes only.  the law library does not guarantee the accuracy, completeness, or usefulness of the information provided.  Nothing in this guide is legal advice.  Anyone seeking legal advice should use this guide as a starting point for their own research or speak with an attorney.

The Commerce Power is one of Congress’s enumerated powers spelled out in Article I § 8, Clause 3.  It gives Congress the power to “regulate commerce with foreign nations, among the states, and with the Indian Tribes.”  In the past, Congress has used this power in an attempt to expand its regulatory powers over the states.  It does so by passing laws under the guise of “being or affecting interstate commerce.”  Congress first dealt with trying to define commerce in Gibbons v. Ogden when they adopted an expansive view of what constitutes commerce and placed more power in the hands of the federal government.  Subsequent cases have adopted different views on the meaning of the commerce clause throughout the history of the United States.  Congress has used the Commerce Power to implement regulatory programs, civil rights laws, unfair labor practices, and criminal laws.  Most of these cases have expanded the power of the Federal government under the Commerce Power.  Courts have also implemented a “negative doctrine” known as the “dormant commerce clause.”  This idea arises from the belief that states may not unduly place limitations or restrictions on interstate commerce.  Justice Marshall first spoke about this idea in dicta in Gibbons v. Ogden.  This power, which Congress uses just by being silent on an issue, is not spelled out in the US Constitution.  Congress uses it to challenge state and local laws even if Congress has not exercised the Commerce Power.  State laws and regulations can be overturned if they burden interstate commerce more than they benefit the citizens of the state where the legislation was passed.  There are two exceptions to the DCC.  States may pass legislation that is discriminatory if the state is acting as a market participant or they are given congressional approval.

Dormant Commerce Clause Analysis

1.         Is State acting as Market Participant?

o   If no, then use DCC analysis (go to 2)

o   If yes,

o   (a) Validly use MP exception? Is this condition one that operates w/in relevant market

§  If no, apply DCC analysis (see 2)

o   (b) Privileges and Immunities Clause (PIC) objection?

§  (i) Fundamental Interest

§  (ii)(a) Substantial Reason

§  (ii)(b) Close Relation between discrimination and substantial reason

2.         State is Outside the scope of the Market:  Dormant Commerce Clause Analysis

o   Does this law Discriminate?

o   If yes,

§  Is there legitimate State interest?

§  Is there non-discriminatory alternative

o   Is the Law Neutral?

o   Use Pike Balancing Test:  presumes law is valid
Are the burdens placed on interstate commerce by the law outweighed by the                                                      
benefits to the state?

This research guide is an introduction to the Dormant Commerce Clause.  This is not one of Congress's enumerated powers and has been inferred from court rulings.  The purpose of this guide is to give the user an overview of the Dormant Commerce Clause as it stands today as well as the historical use of the commerce clause through case law to the present today.  The DCC is often inferred when there is a question about whether state regulation is valid in the absence of federal legislation.  The Court cases listed give an overview of the broad range of regulations that are related to the DCC.  The Federal government may invoke the clause to flex its power on an issue it has been silent about.  Because the uses of the Dormant Commerce Clause are varied, I will only concentrate on the Dormant Commerce Clause as a whole.  Areas of specific legislation that may be of interest to a user of this guide but are not discussed in great detail here include alcohol sales, wildlife and nature, trucking, shipping, and rail travel, food importation and exportation, and waste disposal.  This guide will not delve into any specific area of regulation but is here to give users an idea of how the state's and Federal government interact in the absence of Federal legislation.  This guide will offer users insight into the different beliefs that scholars, judges, and lawmakers have about the Dormant Commerce Clause.  Lastly, this guide should also give users an introduction to issues or topics that may be pertinent in the future and information about various groups that have an interest in this topic.