Dormant Commerce Clause

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Dormant Commerce Clause

Postby stayway » Sun May 01, 2011 1:22 pm

Quick question; what is the analysis framework for approaching facially neutral laws (laws that do not facially discriminate against OOS entities)?


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Re: Dormant Commerce Clause

Postby FireNextTime » Sun May 01, 2011 1:51 pm

You next need to ask another question: Does the law effectively discrim against interstate commerce?

If no, then the law is presumed valid. The challenger must prove that the burden the law nonetheless poses on interstate commerce excessively outweighs the putative local benefits it supposedly it supposed to bring. This is Pike test.

If yes, then the law is presumed invalid. The state must prove that the law is rationally related to a legit state goal and that there are no workable alternatives to meet that goal. This is very difficult for the state to do. However, if the state's law relates to a public function, then it gets much more leeway. Harder to say what the test for this scenario actually is: The United Haulers court (2007) used Pike balancing to uphold the local law; the Ky v Davis court (2008) did not, but still upheld the local law.

Don't forget to also analyze whether the state is acting as a market participant, and then whether its regulatory-like restrictions are not too far downstream. Then also consider whether the law violates the Privileges & Immunities clause. Then bang your head against the desk and pray to the gods of the curve.

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Re: Dormant Commerce Clause

Postby nealric » Sun May 01, 2011 4:24 pm

Basically, you look at whether the statute has anything to do with sleep. If not, then it can only violate the awake commerce clause.

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