About: Dormant commerce clause   Sponge Permalink

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The Commerce Clause contained in the U.S. Constitution grants Congress the "power . . . [t]o regulate commerce with foreign nations, and among the several states." Const. art. I, § 8, cl. 3. The Commerce Clause is more than an affirmative grant of power to Congress. As long ago as 1824, Justice Johnson in his concurring opinion in Gibbons v. Ogden, recognized that the Commerce Clause has a negative sweep as well. The clause, "'by its own force' prohibits certain state actions that interfere with interstate commerce."

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  • Dormant commerce clause
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  • The Commerce Clause contained in the U.S. Constitution grants Congress the "power . . . [t]o regulate commerce with foreign nations, and among the several states." Const. art. I, § 8, cl. 3. The Commerce Clause is more than an affirmative grant of power to Congress. As long ago as 1824, Justice Johnson in his concurring opinion in Gibbons v. Ogden, recognized that the Commerce Clause has a negative sweep as well. The clause, "'by its own force' prohibits certain state actions that interfere with interstate commerce."
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  • The Commerce Clause contained in the U.S. Constitution grants Congress the "power . . . [t]o regulate commerce with foreign nations, and among the several states." Const. art. I, § 8, cl. 3. The Commerce Clause is more than an affirmative grant of power to Congress. As long ago as 1824, Justice Johnson in his concurring opinion in Gibbons v. Ogden, recognized that the Commerce Clause has a negative sweep as well. The clause, "'by its own force' prohibits certain state actions that interfere with interstate commerce." In what commentators have come to term its negative or "dormant" aspect, the Commerce Clause restricts the individual states' interference with the flow of interstate commerce in two ways. The Clause prohibits discrimination aimed directly at interstate commerce, and bars state regulations that, although facially nondiscriminatory, unduly burden interstate commerce. Moreover, courts have long held that state regulation of those aspects of commerce that by their unique nature demand cohesive national treatment is offensive to the Commerce Clause. Courts use a two-step process in analyzing a state law under the dormant Commerce Clause. The first step is to determine whether the state law openly discriminates against interstate commerce in favor of intrastate commerce interests. If the law is facially neutral, applying impartially to in-state and out-of-state businesses, the analysis moves to the second step, a balancing of the local benefits against the interstate burdens. If the law in question regulates evenhandedly among in-state and out-of-state interests, "and its effects on interstate commerce are only incidental, [the law] will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits."
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