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Hi, I am confused when you use the dormant commerce clause- any help would be appreciated-thanks

ii. For the dormant commerce clause I know it is used when there is federal inaction, when the commerce clause could have been used but was not- but does that mean specifically what to look for in a hypothetical is that there is no specific federal statute/Act given that explicitly stops states from doing something or when Congress/government intent not implied ie state law conflicts with the federal law/objective, that is when the dormant commerce clause is used. So what to look for is if the state is just passing some restriction, there is no Congress intent shown, no restrictive statute/act of Congress/federal government stated?
1. Also for the dormant commerce clause- I just wanted to clarify something when you go through the second tier (facially neutral but discrimination in purpose or effect) and you find it to be valid that it not the end of it whenever it is valid in this tier you have to go to the third tier and go through the pike balancing test. Is this what that means?


Also if anyone knows the answer to this let me know:
5. Government funding (ie. for abortion)
From the Rust case it talks about government funding I have in my notes . Congress may discourage by use of its spending power that which it cannot directly prohibit. While Congress cannot directly legislate against abortions or right of physicians to discuss matters pertaining to abortions, it can legitimately withhold funding from persons or entities who engage in such activities. In other words, Congress can decide that one set of values is superior to another, and choose to fund in such a manner as to promote that set. It was well within its powers.
a. So does this mean that the government can say they will give funding to one service and not another service (ie abortion) and that is constitutional BUT if they add a punishment/restrictiveness onto it, for example say they will give a hospital money but only if don’t do abortion, or say if the hospital continues to do abortion then they will cut off funds for other services that is NOT okay and is unconstitutional? I also have in my notes something about if something is an extra benefit (maybe originalist view) then can refuse to fund it- anyone have any clarification on this
i. Can you bring in not only due process issue but what about commerce clause?

dCC is any time the state imposes a reg that affects interstate commerce. If congress has imposed a reg contrary, then the state is in violation of that reg, the state would have to sue for overextending commerce clause power (or whatever). But if an individual or corp is suing a state for imposing a reg that affects interstate commerce, its dCC...pretty sure.

okay thanks -so for the DCC there has to be something specifically said by Congress restricting something (through and Act/law,etc- so it specifically has to say Congress or Federal law, act, statute,etc) for the commerce clause to be used and if that is missing and only a state is restricting something then you don't use the commerce cause you use DCC? Thanks again for the help.

reread that sentence out loud and then edit it. no idea what you're asking.

Sorry- what I meant was:
commerce clause- is used when Congress is restricting something (so in an exam I should look for a federal law, act, statute or one that is specifically passed by Congress )

-if there is no federal law passed by congress and only a state law/regulation then I cannot use the commerce clause, here I can only use the dormant commerce clause? Thanks again for the help.

I think your last post gets it right, but you're overthinking it.

The idea is that the commerce clause, by limiting commerce that can be regulated by Congress to interstate commerce, implies that states cannot regulate such trade. So the DCC analysis concerns whether state action crosses the line and invades interstate commerce, regulation of which is reserved for Congress.

Commerce Clause doesn't say only Congress can regulate interstate commerce so the states are not precluded from regulating interstate commerce expressly. This is where DCC comes in and it says that actually the states can't regulate interstate commerce because if they do they will just do it for their own interests and hurt the unity of the country. However, Congress is the final arbitrator if a state regulation violates DCC and not the courts. You have to memorize all the tests under DCC and CC.

Thanks for all the help- I was just worried that I would use the commerce clause when I should have been using the dormant commerce clause (so on an exam does anyone have any tips on things to look for that key you in on using the dormant commerce clause over the commerce clause because you can't use them at the same time). Thanks again.

The whole point of me/Lincoln's post answer that question. Look at who the action is or could be against. If the state, dCC. If the fed gov, commerce clause.

arc2222 wrote:Sorry- what I meant was:
commerce clause- is used when Congress is restricting something (so in an exam I should look for a federal law, act, statute or one that is specifically passed by Congress )

-if there is no federal law passed by congress and only a state law/regulation then I cannot use the commerce clause, here I can only use the dormant commerce clause? Thanks again for the help.

Not exactly sure what you're trying to say here, but it sounds like you're overthinking it.

(1) Congress cannot simply pass laws on a whim. Congress derives its authority to pass laws from the Constitution.
(2) The "Commerce Clause" in Article I gives Congress the authority to make law when the matter concerns "trade among the several states," or in other words, interstate commerce.
(3) However, basically everything in today's economy involves "interstate commerce," so Congress has broad authority to pass laws using the Commerce Clause as a "hook" or "catch."
(4) Sometimes, the Court upholds Congress' use of the Commerce Clause to pass laws. Like in Ollie's BBQ, the Court allowed Congress to pass an anti-discrimination law because a restaurant received its food supplies from over state lines, which is "in interstate commerce." But sometimes the Court strikes down a law passed under the Commerce Clause if Congress goes too far.

The Dormant Commerce Clause is simply the negative implication of the Commerce Clause. The DCC is not an actual thing, rather it exists because the Commerce Clause exists. It does not physically exist in the Constitution. The thinking is that since Congress has the power to regulate "interstate commerce," then they hold this power to the exclusion of the States (although this argument is contested). For example, Iowa can't pass a law that bolsters its own corn farmers to the detriment of corn farmers in Nebraska. So when a State passes a law that protects its own citizens, the Court steps in and says "you don't have the authority under the DCC to enact a law affecting interstate commerce'"

don't take con law 2.