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Just looking over some of the stuff in the Commerce Clause thread was incredibly helpful, so I figured it might be helpful to maybe go over the Dormant Commerce Clause as well. These are the barebones of analysis I discerned regarding analysis of facially discriminatory versus facially neutral regulations.

Facially Discriminatory Regulations (Per se Invalid): If the regulation treats out of state actors differently than intrastate actors, it is facially discriminatory.
Strict Scrutiny Test: where a state can point to a legitimate state purpose under the police power and that their regulation is the lease restrictive alternative to achieve the purpose, the law may be upheld.

Facially Neutral Regulations: treats in-staters and out of staters alike but has the purpose or effect of discriminating.
Pike Balancing Test: Benefits of the regulation to the state (If there is a legitimate local interest, then it’s a “question of degree”) BALANCED AGAINST The burden the regulation imposes on interstate commerce.
Also consider (though not necessary): is there a less restrictive alternative? So can functionally pass the test, but if there is clearly a less restrictive alternative, the regulation may be struck down (post-fact judicial analysis criticism issue).

Market Participant Exception: if the state favors its own citizens while is it acting as a market participant, rather than a regulator, the DCC does not apply. The state however, can only favor its own citizens in the market it participates in, not in downstream markets.
But when the states acts in a regulatory capacity, any claimed benefits must be compared to the burdens imposed on interstate commerce.
Kind of a sketchy doctrine (exception swallowing the rule issue here)
PRO: the state should be treated like other proprietors when its acts as one, and when states decide to favor their own as buyers or sellers they are in effect deciding to subsidize some part of their population at the expense of their own general treasury funds.
CON: the state can tax (kind of gives it a special place as a private actor...maybe.)

I must have had a terrible con law prof...He taught us that when the law is found discriminatory (be it facially, effect, or purpose) you apply that strict scrutiny test and if it's non-discriminatory you apply Pike.

If the law is facially neutral with a disparate impact against out-of-staters and the law is protectionist in its intentions you can still apply strict scrutiny. That was the Carbone decision, I think.

Then United Haulers went and made everything confusing. If the thing the state is regulating is a traditional local governmental function, it's not discriminatory and you go to the Pike balancing test.

BunkMoreland wrote:I must have had a terrible con law prof...He taught us that when the law is found discriminatory (be it facially, effect, or purpose) you apply that strict scrutiny test and if it's non-discriminatory you apply Pike.

fwiw, i was taught the same thing.

In before the incoherent federalist troll.

betasteve wrote:

BobSacamano wrote:If the law is facially neutral with a disparate impact against out-of-staters and the law is protectionist in its intentions you can still apply strict scrutiny. That was the Carbone decision, I think.

Then United Haulers went and made everything confusing. If the thing the state is regulating is a traditional local governmental function, it's not discriminatory and you go to the Pike balancing test.

I was taught con law without being taught the different levels of scrutiny. That's apparently con law 2... Apparently I know what strict scrutiny is, because I still remember how the court will look at it... but still... dumb teaching methodology.

How did you learn Equal Protection without learning the different levels of scrutiny? Unless Equal Protection is taught in Con Law 2.