State Benefits under the Pike Balancing Test of the Dormant Commerce Clause: Putative or Actual

39 Pages Posted: 14 Mar 2013


Under our federal system of government, the states can regulate the health, safety, and general welfare of their citizens. Problems arise when the states either enact protectionist regulations that discriminate against the commerce of other states, or when legitimate non-discriminatory regulations interfere with the harmony of national commerce. The Supreme Court developed dormant Commerce Clause jurisprudence to prevent such problems. This Note argues that dormant Commerce Clause jurisprudence has been random. This randomness arises from a lack of uniformity in how to apply the Pike test, which says a state law should be struck down if the burdens it imposes on interstate commerce are clearly excessive in relation to its local benefits. Circuits disagree about how to apply Pike, with some requiring the challenged state law to bear a rational basis to a legitimate state goal, while others apply a stricter rational basis or rational basis “with bite” test, while still others subject state laws to intermediate scrutiny. This Note proposes that courts should apply rational basis scrutiny when applying Pike since this is the majority rule, it is the rule most in keeping with the structure of the Constitution, and anything stricter than rational basis would put federal courts in the position of evaluating the wisdom and utility of state legislation, transforming the Pike test into one bordering on strict scrutiny.

Keywords: Pike Balancing Test, Dormant Commerce Clause, State Benefits

Suggested Citation

Fox, James, State Benefits under the Pike Balancing Test of the Dormant Commerce Clause: Putative or Actual. Ave Maria Law Review, Vol. 1, No. 1, 2003. Available at SSRN:

James Fox (Contact Author)

Georgetown University ( email )

Washington, DC 20057
United States

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