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CHAPTER 8

The Dormant Commerce Clause

§8.1 INTRODUCTION AND OVERVIEW

On its face, the Commerce Clause, Article I, §8, cl. 3, is merely an affirmative grant of legislative power to Congress, authorizing it “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In Chapter 5, we examine the extent to which Congress may legislate under this clause. One of the first Commerce Clause issues to confront the Supreme Court, however, was whether this affirmative grant of power to Congress also carried with it the negative inference that the states are thereby precluded from regulating interstate and foreign commerce.

The Court has in fact construed the Commerce Clause both as a grant of power to the national government and as a limitation on the power of the states. Where Congress has exercised its affirmative power under the Commerce Clause by enacting federal legislation, any conflicting state laws will be struck down under the Supremacy Clause and principles of preemption. See §6.2. Yet even where Congress has not legislated under the Commerce Clause and the clause thus remains dormant, state laws that burden or discriminate against interstate or foreign commerce may still be invalidated on the ground that they violate the dormant or negative Commerce Clause. The Commerce Clause thus serves “as a negative and preventive provision against injustice among the States themselves.…” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 193 n.9 (1994). In its dormant or negative aspect, the clause “reflect[s] a central concern of the Framers that … in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U.S. 322, 325-326 (1979).

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