Dormant Commerce Clause questions reward a two-track analysis: first ask whether the state is discriminating against interstate commerce, and only then move to burden balancing if the law is facially neutral.
Dormant Commerce Clause questions reward a two-track analysis: first ask whether the state is discriminating against interstate commerce, and only then move to burden balancing if the law is facially neutral.
Very High priority
When Congress hasn't acted, states CANNOT: (1) DISCRIMINATE against interstate commerce - facial discrimination is virtually per se invalid (strict scrutiny); (2) UNDULY BURDEN interstate commerce - even neutral laws struck if burden on commerce outweighs local benefits (Pike balancing). EXCEPTIONS: (1) Market participant exception - state acting as buyer/seller can favor locals; (2) Congressional authorization - Congress can permit discrimination; (3) Traditional government functions. Look for laws favoring in-state businesses, blocking out-of-state waste, or requiring local processing.
HYPO: State X bans importing out-of-state garbage. State claims it's protecting health and environment. ANALYSIS: This facially discriminates against interstate commerce (only out-of-state garbage banned). Apply STRICT SCRUTINY. Is there a legitimate local purpose? Yes - environmental protection. Are there non-discriminatory alternatives? YES - could limit ALL garbage or use other environmental controls. RESULT: Law is UNCONSTITUTIONAL. Garbage is commerce. Can't block out-of-state products just because they're from elsewhere (Philadelphia v. New Jersey).
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