University of Minnesota Law School Scholarship Repository Constitutional Commentary 1986 State Regulation and the Dormant Commerce Clause. Daniel A. Farber Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Farber, Daniel A., "State Regulation and the Dormant Commerce Clause." (1986). Constitutional Commentary. 173. https://scholarship.law.umn.edu/concomm/173 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact
[email protected]. STATE REGULATION AND THE DORMANT COMMERCE CLAUSE Daniel A. Farber* The commerce clause empowers Congress to "regulate Com merce with foreign Nations, and among the several States, and with the Indian Tribes."I Although it speaks only of congressional power, the clause has been interpreted to empower the federal courts to enjoin state laws that interfere unduly with interstate commerce.z Since the Marshall Court, the Supreme Court has continually modified its definition of the judicial role in overseeing state regula tion.3 The Court's current view of the so-called "dormant" com merce clause, in a nutshell, is as follows.4 State regulations having a discriminatory effect on interstate commerce are subject to stringent judicial scrutiny even if the discrimination was inadvertent.S On the other hand, regulations that burden interstate commerce without discriminating against it are subject to a less rigorous balancing test:6 a state law that burdens local and interstate commerce equally will be upheld if the law's local benefits outweigh the burden * Professor of Law, University of Minnesota.