1. 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

2. 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