There is no dormant Commerce Clause in the text of the Constitution. Thus, some jurists will talk about the negative implications of the Commerce Clause or just the negative Commerce Clause. In a sense, the dormant Commerce Clause doctrine is a form of implied preemption in the field of interstate commerce. Thus, even when Congress has not passed preemptive legislation under the Commerce Clause, the dormant Commerce Clause still limits what states can do in that field. While the field is not completely occupied, a majority of the Court has determined that state laws can conflict with the purposes and objectives of the Commerce Clause itself when they either create an incidental undue burden on interstate commerce or when they discriminate against interstate commerce. The Court has developed different tests in these two areas. The test in incidental burden cases is much more deferential to the states, while the test in discrimination cases is much less deferential.

A few Justices on the Court do not think the Court should hear incidental burden cases. In the same way that Justice Thomas does not think “objectives and purposes” conflict preemption is constitutional; he does not think that it is constitutional to strike down state laws under the incidental undue burden analysis. Justice Scalia joined him in this view.

There are three exceptions to the rule that states can neither create undue burdens nor discriminate against interstate commerce and they are: (1) when Congress itself authorizes the states to act; (2) when the state is not regulating interstate commerce but is an active participant in the market; and (3) when the conduct involves governmental functions.

The materials in this section are divided into several subsections.

• The Early Period

• Modern period: Laws that Discriminate Against Interstate Commerce

• Modern Period: Nondiscriminatory Laws that have an Incidental
Impact on Interstate Commerce

• Congressional Authorization Exception, and

• Market Participant and Public Functions Exception.

The early period materials are designed to give you exposure to how the Court addressed this issue in the first century before the industrial revolution. In the early cases the Court struggled with what was within the state’s police powers versus what was national. This was the approach taken in the Commerce Clause case Gibbons v. Ogden (1824). In the case
assigned, Cooley v. Board of Wardens (1851), the Court took a functional approach, distinguishing between that which requires uniform national standards versus that which would be better regulated at the local level through a diversity of state and local regulations. In a much later case, the Court applied a direct versus indirect analysis to determine if state laws were valid. In DiSanto v. Pennsylvania (1927) the Court held that laws that had a direct effect on interstate commerce were invalid, whereas those that had merely an indirect effect were upheld.

One can see aspects of this test in the modern balancing approach to incidental burden cases and well as in the test for laws that discriminate against interstate commerce. The modern approach, however, is more nuanced. It improves on these tests by going to the root of the problems with these laws, namely that they are either engaged in a form of economic protectionism that is designed to discriminate against interstate commerce and in favor of local commerce, or they place an undue burden on interstate commerce (even cases where the impact is not intended or direct). Both situations are problematic for interstate commerce, but neither is automatically unconstitutional if it can either pass the relevant test or if one of the exceptions apply.

Thus, the remaining cases are divided between the two different modern types of cases and tests and the different exceptions.