Also known as: dormant commerce clause · negative commerce clause
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine inferred from the Commerce Clause that prohibits states from enacting laws that discriminate against or unduly burden interstate commerce. The doctrine prevents protectionist state measures that hinder the free flow of goods across state lines. Courts apply it by first checking for facial discrimination and then assessing whether any legitimate local interest justifies the burden.
Deborah Dunn runs a bait shop near the state border and tries to import live baitfish from another state. The state enacts a total ban on such imports to protect local waterways from invasive species. No less restrictive inspection program exists that would achieve the same ecological goal. The ban survives scrutiny because it advances a vital non-economic interest without reasonable nondiscriminatory alternatives.
Dover Bank operates a waste facility that accepts hazardous material from out of state. The state imposes a surcharge twice as high on out-of-state waste as on local waste. Out-of-state generators pay the extra fee under protest and sue. The differential fee violates the doctrine because origin-based cost increases are presumptively invalid.
Select any source to read its text and confirm it supports the definition.
Deanna Davenport owns an out-of-state winery that wants to ship wine directly to consumers in the state. The state allows only in-state wineries to make such shipments. The restriction favors local producers and cannot be justified by the Twenty-First Amendment. The scheme falls because it amounts to economic protectionism.
Daniel Diaz owns an out-of-state scrap dealer offering metal to the state. The state pays higher prices to in-state sellers and offers less favorable terms to nonresidents. The state acts as a buyer rather than a regulator. The preference is permissible under the market participant doctrine.
Dominion Capital hauls waste for commercial clients. The state requires all haulers to deliver waste to a publicly owned facility. The ordinance favors the government provider over private competitors. The measure receives lenient review and is upheld because it serves legitimate public objectives rather than protectionism.
Doris Duffy manages a nuclear waste site that receives out-of-state material. Congress enacts a statute expressly allowing states to impose surcharges on such waste. The state adopts the surcharge. The charge does not violate the doctrine because Congress has authorized the discrimination.
A facially discriminatory law survives if it serves a legitimate and important non-economic local interest such as protecting ecological resources and no reasonable nondiscriminatory alternatives exist.
Yes. When the state acts as a buyer or seller rather than a regulator it may favor its own citizens in commercial dealings without violating the doctrine.
Such an ordinance receives more lenient review and can be upheld when it favors a government-owned provider performing a traditional public function motivated by legitimate objectives rather than protectionism.
Yes. When Congress clearly authorizes states to discriminate in specified ways the resulting state measures do not violate the dormant commerce clause.
…of federal regulation under the commerce power. When cases involving these laws first reached this Court, we imported from our negative Commerce Clause cases the approach that Congress could not regulate activities such as "production," "manufacturing," and "mining." See, e. g. , United States v. E. C. Knight Co. , 156 U. S. 1, 12 (1895)…