THE DORMANT COMMERCE CLAUSE 1-2-3
Matthew Leaper © 2011
A. DETERMINE IF LAW IS DISCRIMINATE OR NON-DISCRIMINATE
Rule: a facially discriminatory law against out-of-staters will be subject to a
virtually per se rule of invalidity.
A1: Is the law facially discriminate?
Ex: to advantage in-state businesses
Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine (invalidating a law that
created tax exemptions for in-state non-profits) [B1]
United Haulers Ass’n v. Oneida-Herkimer SWMA (upholding a law that discriminates in
favor of a state-owned entity) [B1]
Reynoldsville Casket Co. v. Hyde (invalidating a law that allowed for a longer toward
period on the statute of limitations for claims involving out-of-staters) [B1]
Ex: to impose additional costs on out-of-staters
Oregon Waste Systems, Inc. v. DoEQ (invalidating a law imposing a unjustifiable
surcharge tax on out-of-state waste) [B1]
West Lynn Creamery, Inc. v. Healy (invalidating a law that taxed all in-state sales of milk
at local retailers and rebated the proceeds to in-state farmers) [B1]
Ex: to limit access to local resources
Hughes v. Oklahoma (invalidating a law forbidding any person to transport or ship in-
state minnows for sale out-of-state) [B1]
Philadelphia v. New Jersey (invalidated a landfill usage law that created additional costs
for out-of-staters by limiting the supply of in-state landfill space) [B1]
Lewis v. BT Investment Managers, Inc. (invalidating a law prohibiting out-of-state banks
from ownership of in-state investment advisory businesses) [B2]
Maine v. Taylor (upholding a law banning out-of-state baitfish because it was a
compelling, least discriminating means conservation) [B1]
Ex: to require use of local businesses with a geographical boundary
Dean Milk v. Madison (invalidating a law requiring the processing of milk within a five
mile radius of Madison, WI) [B1]
Cooley v. Board of Wardens (invalidating a law requiring ships entering or leaving the
port of Philadelphia to engage a local pilot to guide them through the harbor) [B1]
C & A Carbone, Inc. v. City of Clarkstown (invalidating a flow control ordinance requiring
all recyclers to pay transfer station fees to a local, private processer) [B1]
South-Central Timber Dev., Inc. v. Wunnicke (invalidating an Alaska law requiring timber
to processed locally) [B1]
United Haulers Ass’n v. Oneida-Herkimer SWMA (invalidating a flow control ordinance
requiring all recyclers to pay transfer station fees to a local, public processer) [B1]
B. DETERMINE IF LAW IS CONSTITUTIONAL
B1. LAW IS DISCRIMINATORY, PRESUMPTION = UNCONSTITUTIONAL
APPLY EFFECTS TEST
Does the law achieve a compelling, non-protectionist purpose?
Yes Maine v. Taylor (guard against invasive species)
No, the law acted to preserve natural or commercial resources.
H.P. Hood & Sons v. DuMond (milk supply)
Hughes v. Oklahoma (minnow market)
Lewis v. BT Investment Managers, Inc. (denied market access)
Philadelphia v. New Jersey (landfill use)
No, the law created a local economic advantage.
Bacchus Imports, LTD. v. Dias (tax advantages)
Baldwin v. G.A.F. Seelig, Inc. (milk prices)
Camps Newfound/Owatonna, Inc. v. City of Harrison, Maine (tax advantages)
Hunt v. Wash. State Apple Ad. Comm’n (additional fees)
Oregon Waste Systems, Inc. v. DoEQ (additional fees)
Pike v. Bruce Church, Inc. (local processing)
Reynoldsville Casket Co. v. Hyde (towing period)
West Lynn Creamery, Inc. v. Healy (tax advantages)
No, the law required the use of local private businesses.
C & A Carbone, Inc. v. City of Clarkstown (trash flow, private)
Cooley v. Board of Wardens (local pilots)
Dean Milk v. Madison (local processing)
South-Central Timber Dev., Inc. v. Wunnicke (local processing)
Does the law effect the “least discriminative alternative”?
Yes Maine v. Taylor (only effective strategy)
No Dean Milk v. Madison (other alternatives available)
Hughes v. Oklahoma (most discriminating option)
Pike v. Bruce Church, Inc. (less expensive options available)
Rule: a facially neutral law will be found discriminatory if it is deemed to have either
a a discriminatory purpose or effect, or a disproportionate adverse effect on
interstate commerce.
A2: Is It facially neutral with a discriminate purpose or effect?
Ex: to effect a protectionist purpose
H.P. Hood & Sons v. DuMond (invalidating a law that prevented out-of-staters from
infringing upon the in-state milk supply) [B1]
Ex: to exclude [all or some] out-of-staters from an in-state market
Baldwin v. G.A.F. Seelig, Inc. (invalidating a law regulating the minimum prices to be paid to
all out-of-state milk producers by in-state dealers) [all, B1]
Ex: to impose additional costs on out-of-staters
Bacchus Imports, LTD. v. Dias (invalidating a law that exempted in-state producers from a
20% wholesale tariff) [B1]
Hunt v. Wash. State Apple Ad. Comm’n (invalidating a law that prohibited non-USDA
grading systems for in-state apples at the expense of out-of-state apple producers) [B1]
A3: Or, is it facially neutral with a disproportionate adverse effect?
Ex: to require the use of local businesses (e.g. local processing)
Pike v. Bruce Church, Inc. (invalidating a law requiring cantaloupe to be processed in-state
in order to classify as ‘Arizona-grown’) [B1 or B2]
Ex: to enforce a legitimate local interest
Exxon, Corp. v. Governor of Maryland (upholding a law preventing integrated petroleum
producers or refiners from operating service stations in-state) [B2]
Minnesota v. Clover Leaf Creamery (upholding a law requiring all milk sold in-state to be
sold in paper cartons because it benefited the local paper industry) [B2]
Kassel v. Consolidated Freightways Corp. (invalidating a law banning the use of 65’ foot
double trailers on in-state roads) [B2]
Southern Pacific v. Arizona (invalidating a law which prohibiting trains of more than 14
passenger or 70 freight cars to travel on in-state railways) [B1, b/c it was prior to B2]
Bibb v. Navajo Freight Lines, Inc. (invalidating a law requiring all trucks and trailers on in-
state highways to use curved mudguards) [B2]
CTS Corp. v. Dynamics Corp. of America (upholding a law limiting corporate takeovers of
in-state corporations, by requiring a majority approval of disinterested shareholders) [B2]
Edgar v. MITE Corp (invalidating a business takeover act requiring offers to be registered
in-state 20 days before the offer became effective) [B2]
B2. LAW IS NON-DISCRIMINATORY , PRESUMPTION = CONSTITUTIONAL
APPLY BALANCING TEST
Do local interests (soft) outweigh burdens on interstate commerce ($$$)?
Yes CTS Corp. v. Dynamics Corp. of America (corporate law)
Exxon, Corp. v. Governor of Maryland (big oil)
Minnesota v. Clover Leaf Creamery (paper milk cartons)
No Bibb v. Navajo Freight Lines, Inc. (mud flaps)
Edgar v. MITE, Corp. (sales of stock)
Kassel v. Consolidated Freightways Corp. (65 foot doubles)
Pike v. Bruce Church, Inc. (local processing)
Southern Pacific v. Arizona (local train regulations)
Does the law effect the “least discriminative alternative”?
Yes Minnesota v. Clover Leaf Creamery (best strategy)
No Not a controlling analysis for non-discriminatory laws
C. APPLY EXCEPTIONS
C1. Does it discriminate in favor a public entity?
Yes Un’d Haulers Ass’n v. Oneida-Herkimer SWMA (state-owned entity)
Department of Kentucky v. Davis (the state)
No C & A Carbone, Inc. v. City of Clarkstown (quasi-private entity)
C2. Is it a quarantine law?
Yes Maine v. Taylor (invasive baitfish)
No Philadelphia v. New Jersey (trash)
C3. Has the law been approved by congress?
Yes Prudential Insurance Co. v. Benjamin (taxes)
C4. Does the market participant doctrine apply?
Yes United Building & Constr. Trades Council v. Camden (doctrine allows the
state to specific local labor requirements on in-state projects)
No South-Central Timber Dev., Inc. v. Wunnicke (doctrine does not allow for
downstream regulation)