Dormant Commerce Clause Is there state action (not Federal) action? A judicially created doctrine (not in the Constitution) for the court to contend that there are some things the states can’t do, specifically passing protectionist legislation... Is there state action (not Federal) action? Yes No Dormant Commerce Clause Claim No Is it a regulation? OR Is the state a market participant? This is an exception to the rule. If the state is a market participant the DCC is not applied b/c a state may favor local citizens over out-of-state economic interests Is it Facially Dicriminatory? Yes No Is there discriminatory intent or effect? No Dormant Commerce Clause Claim STRICT SCRUTINY Yes No Is there a legitimate state interest that is not protectionist? UNCONSTITUTIONAL No Yes CONSTITUTIONAL Does it discriminate against out of staters? Yes No Is the means rationally related? No Yes BALANCING TEST Is the burden outweighed by the state objective? No Yes

Is the state discriminating against out-of-staters? Privileges & Immunities Clause (Article IV, § 2) “The citizens of each state shall be entitled to all P & I’s in the several states.” Is the state discriminating against out-of-staters? That is, denying fundamental rights to out-of-staters that it provides its own citizens. No Article IV P & I Claim. Remember that the P & I of the 14th A was essentially made irrelevant by the Slaughterhouse Cases in 1873. NO YES Is the right fundamental to Interstate Harmony? YES NO Does the overt discrimination (not just causing an incidental effect) against out of staters bear a substantial relationship to the problem the statute is attempting to resolve? CONSTITUTIONAL UNCONSTITUTIONAL (Heightened) INTERMEDIATE SCRUTINY APPLIES No Yes Remember: - Corporations and aliens are not protected by this Clause. But, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the 14th A. - Only rights “fundamental to national unity are covered” (to be employed, engage in business, practice one’s profession…) - There is no market participant exception to the P & I Clause