Black-letter propositions
- 01
Facially or purposefully discriminatory commerce laws are usually invalid unless necessary to an important nonprotectionist interest with no reasonable nondiscriminatory alternative.
- 02
Evenhanded laws are invalid only when burdens on interstate commerce are clearly excessive relative to local benefits.
- 03
A state acting as market participant may favor residents in its own market, but downstream regulation is limited.
- 04
Congress may authorize state discrimination that the dormant Commerce Clause would otherwise forbid.
- 05
Article IV Privileges and Immunities protects out-of-state citizens, not corporations, regarding important economic activities and civil liberties unless substantial reason and close relation exist.
Use this attack sequence under time
Frame the issue
Does the law discriminate on face, purpose, or effect?
Resolve the next checkpoint
If yes, apply the near-per-se rule and alternatives.
Resolve the next checkpoint
If evenhanded, balance burden and benefit.
Resolve the next checkpoint
Check market participant and congressional authorization.
Finish the conclusion
Separately test Article IV plaintiff and protected activity.
Common wrong turns
- Public health language does not immunize economic protectionism.
- The market-participant exception does not authorize broad regulation outside the market.
- Corporations may invoke the Commerce Clause but not Article IV citizenship protection.
Worked example
A state charges out-of-state processors triple the inspection fee paid by identical in-state processors to protect local jobs.
The fee facially discriminates against interstate commerce for a protectionist purpose and is almost certainly invalid. An out-of-state individual may also examine Article IV if the discrimination burdens a protected livelihood.
Practice this topic
The dormant commerce limit
Cornell describes the Dormant Commerce Clause as an implied restriction derived from the Commerce Clause that limits states' ability to pass legislation that discriminates against or excessively burdens interstate commerce, even when there is no congressional legislation. It gives West Lynn Creamery v. Healy, where the Court struck down a Massachusetts tax on milk products because it discriminated against non-Massachusetts businesses, and notes the Court addressed the doctrine in National Pork Producers Council v. Ross.
The Commerce Clause has been viewed both as a grant of congressional authority and as a restriction on the states, so identify which is at issue.
Privileges and immunities
Article IV, Section 2 says the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Cornell says the clause restrains state efforts to discriminate against out-of-state citizens and requires states to treat them as native citizens or residents. It does not extend to all commercial activity and does not apply to corporations, only to U.S. citizens.
Distinguish this clause from the Fourteenth Amendment's privileges or immunities language, and from the Dormant Commerce Clause, which protects commerce rather than citizens.
Frequently asked questions
What is the controlling rule for dormant commerce clause and privileges and immunities?+
Discriminatory interstate-commerce laws are presumptively invalid, while evenhanded burdens receive balancing and Article IV separately protects citizens' fundamental interstate activities.
What is the Dormant Commerce Clause?+
An implied restriction from the Commerce Clause that limits state laws that discriminate against or excessively burden interstate commerce, even without congressional legislation.
What happened in West Lynn Creamery v. Healy according to Cornell?+
The Court struck down a Massachusetts tax on milk products because the tax discriminated against non-Massachusetts citizens and businesses.
What does Article IV's Privileges and Immunities Clause protect?+
Citizens of each state entitlement to the privileges and immunities of citizens in the several states, restraining states from discriminating against out-of-state citizens.
Does the Privileges and Immunities Clause protect corporations?+
No. Cornell says the Privileges and Immunities Clause applies only to U.S. citizens and not to corporations, so a corporate plaintiff cannot rely on it.
Does the Privileges and Immunities Clause cover all commercial activity?+
No. Cornell says the Privileges and Immunities Clause does not extend to all commercial activity, so identify the specific right at issue before relying on it.
Primary sources
Cornell LII Wex: dormant commerce clause↗Cornell LII Wex: privileges and immunities clause↗Cornell LII: U.S. Constitution, Article IV↗Governing text for dormant commerce clause and privileges and immunities
Constitution of the United States, full text (National Archives) ↗