The Dormant Commerce Clause is a frequently tested Constitutional Law topic on the bar exam. It focuses on whether state laws improperly interfere with interstate commerce.
Most questions test whether a state law is discriminatory or whether it places an undue burden on interstate commerce.
What Is the Dormant Commerce Clause?
The Dormant Commerce Clause refers to the principle that states cannot enact laws that discriminate against or excessively burden interstate commerce, even when Congress has not acted.
On the bar exam, the key issue is whether a state regulation violates this limitation.
Step 1: Determine Whether the Law Is Discriminatory
The first step is to determine whether the state law discriminates against interstate commerce.
A law is discriminatory if it:
• Favors in-state economic interests
• Burdens out-of-state competitors
Discriminatory laws are subject to strict scrutiny and are usually invalid.
Step 2: Apply the Pike Balancing Test
If the law is not discriminatory, courts apply a balancing test.
Under this test, a law will be upheld unless the burden on interstate commerce is clearly excessive in relation to the local benefits.
This is often referred to as the Pike balancing test.
Step 3: Exceptions to the Dormant Commerce Clause
There are important exceptions:
• Congressional approval → Congress can authorize state laws that would otherwise violate the Dormant Commerce Clause
• Market participant exception → a state acting as a market participant may favor its own citizens
These exceptions frequently appear on the bar exam.
Common Exam Traps
Dormant Commerce Clause questions often include traps such as:
• Misidentifying whether a law is discriminatory
• Forgetting to apply the Pike balancing test
• Ignoring exceptions
Careful analysis of the facts is essential.
How the Dormant Commerce Clause Is Tested on the Bar Exam
Dormant Commerce Clause questions typically require a structured approach:
• First, determine if the law is discriminatory
• Second, apply the appropriate test
• Third, consider any exceptions
On essays, clearly walk through each step. On multiple-choice questions, focus on whether the law favors in-state interests or imposes excessive burdens.