Categories of Dormant Commerce Clause Cases

1) State or local laws that discriminate against out-of-state commerce which include both:
a) State or local laws that discriminate on their face against out-of-state commerce; and
b) State or local laws that have a discriminatory effect on out-of-state commerce.

2) State or local laws that are motivated by economic protectionism (a desire to protect local economic interests at the expense of out-of-state 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 commerce 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 Clause context.

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 benefits.

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.