Toward a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework

Abstract

The dormant commerce clause is a complex constitutional matter that defies easy explanation. Generations of law students, judges, practicing lawyers and legal commentators have struggled to understand what the Supreme Court does when it decides cases involving the dormant commerce clause. Even various Supreme Court Justices have characterized the Court's dormant commerce clause doctrine as hopelessly confused, a quagmire, and not predictable.

Professor Lawrence's article provides a comprehensive Unitary Framework that incorporates the Court's array of dormant commerce clause approaches and leading scholarly works under one roof, thus bringing order - and improved certainty and clarity - to this currently muddled area At the same time, the Unitary Framework retains the flexibility to allow for a particularized approach with adequate sensitivity to factual nuance - an important characteristic for any framework if it is to be of any use to courts, which need to be able to consider the particular equities of individual cases.

The key to the Unitary Framework is that it consolidates the Court's dormant commerce clause jurisprudence into one functionally coherent, consistent approach, which is expressed succinctly by the following flowchart:

Stage 1. Legitimate State Purpose.

- Inquiry: Does the measure pursue a legitimate (i.e.,nondiscriminatory) state purpose? (State measure is presumed valid; challenger has burden to show discriminatory purpose.)

a. if YES, proceed to Stage 2.

b. if NO, measure is absolutely per se invalid and struck down - inquiry is ended.

Stage 2. Balancing.

- Inquiry: As applied, is the measure unacceptably discriminatory in effect (first, to determine burden of proof, ask if the measure is evenhanded-in-application or discriminatory-in-application); is measure discriminatory on its face?

a. if EVENHANDED-IN-APPLICATION, measure is presumed valid - challenger has burden of proving that the measure's burden on interstate commerce is clearly excessive in relation to state benefits.

b. if DISCRIMINATORY-IN-APPLICATION, measure is presumed invalid. (1) Where measure imposes burden mostly, although not exclusively, on out-of-state interests: State has burden of justifying that the measure is likely to achieve its legitimate purpose; challenger then has burden of either rebutting state's justification or of showing that the purpose can be served as well by available nondiscriminatory alternatives. (2) Where measure imposes burden exclusively on out-of-state interests: State has burden of proving that the measure is highly likely to achieve its legitimate purpose, and that the purpose cannot be served as well by available nondiscriminatory alternatives.

c. if FACIALLY DISCRIMINATORY, measure is virtually per se invalid. State has heavy burden of proving that the measure is virtually certain to achieve its legitimate purpose, and that the purpose cannot be served as well by available less discriminatory means.

As suggested by the flowchart, the Unitary Framework involves two major levels of inquiry: (1) whether the state measure pursues a legitimate state purpose; and if so, (2) whether this legitimate state purpose is so outweighed by the burdens imposed by the statute on interstate commerce that the statute must be struck down.

Keywords: dormant commerce clause