Targeting State Protectionism Instead of Interstate Discrimination under the Dormant Commerce Clause
Arizona State University (ASU) - Sandra Day O'Connor College of Law
San Diego Law Review, Vol. 34, p. 571, 1997
This article argues that the primary concern in evaluating local regulations ought to be the long-recognized prohibition against resident economic protectionism. In this article, I will demonstrate that economic protectionism and interstate discrimination are not synonyms and should not be treated as such. My thesis is premised on the notion that the Court will arrive at correct results in complex dormant Commerce Clause cases more consistently, predictably, and easily if it asks the correct question. Section One of this article offers working definitions and elements of both discrimination against interstate commerce and economic protectionism. It then illustrates the analytical differences between economic protectionism and discrimination, focusing primarily on the Court's recent analysis of local environmental flow control legislation under the dormant Commerce Clause in C & A Carbone, Inc. v. Clarkstown. Section Two briefly outlines the development of dormant Commerce Clause jurisprudence and the evolution of the current two-tiered "discrimination model" of dormant Commerce Clause review. Finally section Three of this Article suggests why it is important to adopt a dormant Commerce Clause test that focuses on targeting economic protectionism as the evil meant to be addressed by the dormant Commerce Clause. Section Three concludes that a dormant Commerce Clause test should review local regulations first for economic protectionism and next for discrimination, but it should not subject every state law to review under the dormant Commerce Clause.
Number of Pages in PDF File: 64
Keywords: Interstate discrimination, economic protectionism, Commerce Clause
Date posted: July 16, 2009
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