Federalism: Federal and State Powers, Preemption & the Tenth Amendment

What is the Dormant Commerce Clause (DCC)?

A rule that limits state laws that discriminate against or unduly burden interstate commerce.

When is the DCC especially relevant?

When a state regulates interstate commerce and Congress has not addressed the matter.

Does a state law have to discriminate to violate the DCC?

No. A law that applies equally to everyone can still impose an undue burden on interstate commerce.

What is the DCC test for a nondiscriminatory state law?

The law is invalid if its burden on interstate commerce outweighs its legitimate local benefits.

What else may a court consider when weighing a nondiscriminatory law’s burden?

Whether less restrictive alternatives are available.

What is the DCC rule for a law that discriminates against interstate commerce?

It is generally invalid unless necessary to achieve an important government purpose.

What is an example of discrimination against interstate commerce?

Taxing goods made in other states more heavily than goods made in-state.

What are two major exceptions to the DCC?

Congressional approval and the market participant exception.

What is the congressional approval exception?

Congress may authorize a state to discriminate against interstate commerce, provided no other constitutional rule is violated.

What is the market participant exception?

The DCC does not restrict a state’s preference for local businesses when the state itself is buying or selling goods.

Does the market participant exception allow a state to require private companies to buy only local goods?

No. In that situation, the state is regulating private purchases rather than participating in the market.

What does the Article IV Privileges and Immunities Clause (P&I) prohibit?

A state generally may not discriminate against citizens of other states concerning protected rights or activities.

Who is protected by Article IV P&I?

Individual citizens of other states; not corporations or noncitizens.

Which interests trigger Article IV P&I protection?

Fundamental rights and important economic activities, including the ability to earn a living.

Is admission to a state’s bar an activity protected by Article IV P&I?

Yes. It concerns the ability to earn a living.

Does Article IV P&I generally protect equal prices for recreational access to a state park?

No. Recreational park access is generally not a protected fundamental right or important economic activity.

Can a state ever charge nonresidents more for a professional license?

Yes, if the difference reasonably reflects additional costs rather than protectionism.

When can discrimination covered by Article IV P&I be justified?

When it is necessary to achieve an important government interest.

Do congressional approval and the market participant exception automatically defeat an Article IV P&I claim?

No. Those are DCC exceptions, not Article IV P&I exceptions.

What is the difference between Article IV P&I and the Fourteenth Amendment Privileges or Immunities Clause?

Article IV P&I addresses discrimination against citizens of other states; the Fourteenth Amendment clause protects rights of national citizenship.

Which clause may apply when a state treats new residents worse because they recently moved there?

The Fourteenth Amendment Privileges or Immunities Clause, particularly when the rule burdens interstate travel.

If a state law discriminates against out-of-state workers and burdens interstate commerce, which doctrines should you consider?

Both the DCC and Article IV P&I.

If a state law treats residents and nonresidents equally but burdens interstate commerce, which doctrine should you consider?

The DCC.