Dormant Commerce Clause

 The Court has construed the Commerce Clause not only as a grant of power to Congress, but also as a limitation on the power of the states.

First, when Congress has exercised its power under the Commerce Clause by enacting federal legislation, any conflicting state laws will be invalid under the Supremacy Clause.

But suppose Congress has not passed any law regulating some practice, but a state has enacted a law that restricts commerce in this area that Congress has left alone.

We don't have time to cover this extensively in the readings or in class, so let me just tell you that the Court has held that state laws that excessively burden interstate commerce violate the dormant (or negative) Commerce Clause. The Court applies a balancing test here that seeks to determine whether the state law imposes an excessive or unreasonable burden on interstate commerce.

This is particularly true when a state economic regulation affords local business or consumers an economic advantage at the expense of a free-flowing national market.

Just be aware of this issue, which is explored in other courses in the curriculum.