Also known as: commerce among the several states · interstate commerce
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional phrase describing trade, traffic, and economic activity that crosses or substantially affects state lines and that Congress may regulate or that states may not burden without congressional consent.
Crestview Holdings harvests live baitfish from State A lakes and sells them to out-of-state distributors. State A enacts a statute barring any export of the fish to protect local retailers from competition. The company challenges the ban in federal court. The court invalidates the statute because it blocks the movement of an article of commerce across state lines solely to favor in-state buyers.
Citadel Security generates solid waste at its State B facilities and contracts with an out-of-state processor for disposal. A municipal ordinance requires all locally produced waste to be processed at a designated in-state plant before it may leave the city. The company sues. The court strikes down the ordinance because it forces waste to remain inside the state and prevents out-of-state processors from competing.
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Central Dynamics purchases state-owned timber at a State C auction. The sale contract requires the buyer to process the timber inside State C before shipping any portion out of state. The company processes the timber elsewhere and faces penalties. The court holds the downstream condition invalid because it regulates subsequent commercial activity beyond the initial sale.
Continental Bank operates a nuclear facility in State D and ships waste to an out-of-state disposal site. Congress has enacted a statute expressly permitting states to impose higher fees on waste originating outside their borders. State D levies the authorized surcharge. The bank challenges the fee. The court upholds the surcharge because Congress has consented to the discrimination.
Cynthia Cortez, an out-of-state insurance company, sells policies to State E residents. Congress has passed legislation allowing states to tax out-of-state insurers differently from local companies. State E imposes the higher tax. Cortez sues. The court sustains the tax because the federal statute removes the usual dormant-commerce restriction.
Cody Callahan carries a firearm near a State F high school for personal protection. A federal statute criminalizes possession of a gun in a school zone without requiring proof that the weapon moved in interstate commerce. Callahan is prosecuted. The court dismisses the charge because the statute regulates non-economic local conduct that does not substantially affect interstate commerce.
The phrase covers the movement of goods, services, and persons across state lines as well as intrastate activities that substantially affect interstate markets. Courts examine whether the regulated conduct is economic in nature and whether its effects can be aggregated.
No. Such an export ban discriminates against interstate commerce by keeping an article of commerce inside the state solely to favor local purchasers. The restriction is a classic form of economic protectionism that the dormant commerce clause forbids.
Congress may expressly permit states to impose burdens that would otherwise violate the dormant commerce clause. Once Congress has given clear consent, the state action is insulated from challenge under the commerce power.
A state may prefer its own citizens in the immediate sale or purchase of goods it owns. It may not, however, attach downstream conditions that control how buyers later use or process those goods in interstate markets.
…Congress has the authority to enact such laws as are "necessary and proper" to carry into execution its power to regulate commerce among the several States. U. S. Const., Art. I, § 8, cl. 18. But on this Court's understanding of congressional power under these two Clauses, many of Congress' other enumerated powers under Art. I, § 8, are wholly…