Categories of Dormant
Commerce Clause Cases
1) State or local laws that discriminate against out-of-state commerce
a) State or local laws that discriminate on their face against
b) State or local laws that have a discriminatory effect on
2) State or local laws that are motivated by economic protectionism (a
desire to protect local economic interests at the expense of
commerce). In general, such laws employ means that discriminate against
out-of-state commerce on their face or in their effect, but the
impermissible motive alone, independent of the use of discriminatory
means, is a basis for applying the "rule of virtual per se invalidity."
3) State statutes that impose burdens on interstate commerce but use
means that neither discriminate against out-of-state
nor are motivated by economic protectionism.
Dormant Commerce Clause Standards
1) Strict Test: To be constitutional, a state or local law must advance
a legitimate state or local
interest and there must be no reasonable nondiscriminatory alternative
means available to advance that interest. On numbers of occasions, the
Court refers to this test as a "rule of virtual per se invalidity"
because of how difficult it is to satisfy in the dormant Commerce
2) More Deferential Test (Pike Balancing Test): To be constitutional,
the burdens a state or
local law imposes on out-of-state
commerce must not be clearly excessive in comparison to the local
The strict test applies to laws that discriminate against out-of-state
commerce on their face or in their effect as well as laws that are
motivated by economic protectionism.
The more deferential test applies to all other laws that impose undue
burdens on out-of-state commerce.