Nahmod Law

Background

Dormant Commerce Clause issues arise out of Congressional silence about the particular subject matter being regulated by the state to the possible detriment of interstate commerce.  Since the Commerce Clause confers power only on Congress to regulate interstate commerce, one wonders why there should even be a  so-called “dormant” Commerce Clause enforceable by the judiciary.

There are two extreme positions possible as to the Court’s  role. At one extreme, the Court could stay out of it altogether and leave it to Congress to regulate in the area and possibly preempt. A  disadvantage of this position is that Congress may never get around to many state statutes that adversely affect interstate commerce. At the other extreme, the Court could keep the playing field clear for future Congressional regulation by striking down every state statute this is shown to adversely affect interstate commerce, regardless of its merits, on the theory that Congressional power over interstate commerce is exclusive. A disadvantage of this position is that it may amount to federal judicial interference with a state’s legitimate health and safety concerns as well as undermine state experimentation, an important function of federalism.

As it turns out, the Court has staked out a middle position: it reviews challenged state statutes under the dormant Commerce Clause, upholding some and overturning others. This directly raises the question of the justifications for judicial intervention and the related question of what the standards of dormant Commerce Clause review should be. Thus, the dormant Commerce Clause provides an excellent opportunity for the teacher to review the purposes of the Commerce Clause and related federalism concerns, and to introduce in a preliminary way the Equal Protection Clause and its various levels of scrutiny, ranging from strict scrutiny to rational basis review. Read the rest of this entry »