The Unified Dormant Commerce Clause

61 Pages Posted: 17 May 2019 Last revised: 6 Oct 2019

See all articles by Adam B. Thimmesch

Adam B. Thimmesch

University of Nebraska College of Law

Date Written: May 6, 2019


The Supreme Court’s dormant Commerce Clause doctrine is widely recognized as a disjointed mess. One source of significant confusion in that body of law is the Court’s formal maintenance of different tests for purposes of analyzing state tax laws and nontax laws. That bifurcated approach is conceptually problematic and leads to inconsistent and questionable results. This Article argues that the Court should eliminate its dual tests and recognize a unified dormant Commerce Clause.

The Article traces the history of the Court’s dual tests and explains the erosion of the substantive differences that have existed between them, including in the Court’s recent decision in South Dakota v. Wayfair. The Article also shows how acceptance of a unified test would resolve multiple tensions that exist under the Court’s current doctrine and how application of a unified test would have changed the Court’s approach in several controversial cases. Notably, the Article also shows how acceptance of a unified test would help to properly situate the Court’s internal consistency test.

State tax statutes can, and should, be evaluated under the same general framework as nontax statutes. The state interest in taxation can be adequately protected within that more general framework, and applying a unified dormant Commerce Clause would help to streamline the doctrine and produce more consistent adjudication between substantive areas of law.

Keywords: dormant commerce clause, South Dakota v. Wayfair, internal consistency, Pike balancing

JEL Classification: H20, H70, H71, H77, K34

Suggested Citation

Thimmesch, Adam B., The Unified Dormant Commerce Clause (May 6, 2019). Temple Law Review, Forthcoming. Available at SSRN:

Adam B. Thimmesch (Contact Author)

University of Nebraska College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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