The Flawed Economics of the Dormant Commerce Clause

By McGreal, Paul F. | William and Mary Law Review, March 1998 | Go to article overview

The Flawed Economics of the Dormant Commerce Clause


McGreal, Paul F., William and Mary Law Review


Shhh! If you keep very, very quiet, and listen really, really carefully, you just might hear it rustling around underneath the Constitution. Like the sound of a tree falling in a deserted forest, constitutional law commentators are never sure if it truly exists. And, like people who claim to have seen UFOs, state governments swear that it exists and is here to conquer them. What is this lurking presence that so perplexes the mind? It is the doctrine of the dormant Commerce Clause, perhaps the Supreme Court's best known invocation of constitutional silence.(1) And, to continue mixing metaphors, that unseen constitutional doctrine acts like a colorless, odorless toxic gas: a silent killer of state laws affecting interstate commerce.

Exactly what is this hideous thing? In short, the dormant Commerce Clause is a constitutional law doctrine that says Congress's power to "regulate Commerce ... among the several States"(2) implicitly restricts state power over the same area.(3) In general, the Commerce Clause places two main restrictions on state power. First, Congress can preempt state law merely by exercising its Commerce Clause power.(4) Second, the Commerce Clause itself--absent action by Congress--restricts state power; the grant of federal power implies a corresponding restriction of state power.(5) This second limitation has come to be known as the "dormant" Commerce Clause because it restricts state power even though Congress's commerce power lies dormant.(6)

Generally, the dormant Commerce Clause doctrine prohibits states from unduly interfering with interstate commerce.(7) The Court has developed two tests to determine when state regulation has gone too far. Under one test, the Court balances the burden on interstate commerce against the state's interest in its regulation.(8) Under the second test, states are prohibited generally from enacting laws that discriminate against interstate commerce.(9) Over the last two decades, the dormant Commerce Clause has received much scholarly attention, with commentators either proposing refinements to the balancing test(10) or challenging the constitutional basis for the doctrine as a whole.(11) The commentators, however, generally have been kind to the antidiscrimination test of the dormant Commerce Clause.(12) Indeed, even Justice Antonin Scalia, who has argued vigorously (in dissent) that the Court should abandon the dormant Commerce Clause,(13) applies the antidiscrimination principle.(14)

Swimming against this tide, this Article argues that the Court's application of the antidiscrimination test is, in some cases, in conflict with the underlying purpose of the Commerce Clause: to protect the national economic market from opportunistic behavior by the states.(15) The Court has never held that discrimination between in-state and out-of-state commerce, without more, violates the dormant Commerce Clause. Rather, the Court has explained that the dormant Commerce Clause is concerned with state laws that both: (1) discriminate between instate and out-of-state actors that compete with one another, and (2) harm the welfare of the national economy.(16) Thus, a discriminatory state law that harms the national economy is permissible if in-state and out-of-state commerce do not compete.(17) Conversely, a state law that discriminates between in-state and out-of-state competitors is permissible if it does not harm the national economy.(18)

The Court has been careless in applying the antidiscrimination test; in many cases, neither of the two requirements--interstate competition or harm to the national economy--is ever mentioned.(19) As the Court stated just last term, these requirements have "more often than not ... remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause."(20) The reason the first requirement, competition between in-state and out-of-state actors, goes unstated is fairly obvious--in most cases (all except two before the Supreme Court), it is clear that instate and out-of-state actors compete in the same market. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Flawed Economics of the Dormant Commerce Clause
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.