Tulsa Law Review Tulsa Law Review
Volume 59 Number 1
Winter 2024
The Proper Structure of Dormant Commerce Clause Review The Proper Structure of Dormant Commerce Clause Review
R. Randall Kelso
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The Proper Structure of Dormant Commerce Clause Review
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109
THE PROPER STRUCTURE OF DORMANT COMMERCE CLAUSE REVIEW
R. Randall Kelso
*
I. I
NTRODUCTION ................................................................................................. 109
II. D
ORMANT COMMERCE CLAUSE REVIEW GENERALLY ..................................... 111
A. Earlier Dormant Commerce Clause Doctrine ........................................... 111
B. Modern Dormant Commerce Clause Doctrine ......................................... 112
III. Q
UESTIONS EMERGING THE LAST 30 YEARS .................................................... 115
A. The Nature of Dormant Commerce Clause Review ................................. 115
i. The Nature of Maine v. Taylor Review............................................. 115
ii. The Nature of Pike v. Bruce Church Review .................................... 118
B. When to Apply Maine v. Taylor or Pike v. Bruce Church ....................... 119
i. Standards for Discriminatory Burdens to Trigger
Maine v. Taylor ................................................................................. 119
ii. Standards to Trigger Pike v. Bruce Church Review .......................... 120
a. Some Kind of Discrimination Against Interstate
Commerce Needed Even to Trigger Pike ................................... 120
b. No Discrimination Needed to Trigger Pike if
Burden Exists on Interstate Commerce ...................................... 122
IV. T
HE BEST APPROACH TO DORMANT COMMERCE CLAUSE REVIEW.................. 123
A. The Nature of Dormant Commerce Clause Review ................................. 123
B. When to Apply Maine v. Taylor or Pike v. Bruce Church ....................... 124
i. Discriminatory Effects Doctrine ....................................................... 124
ii. Non-Discriminatory Effects, but Burdens on Interstate
Commerce ......................................................................................... 126
V. ADDITIONAL CONSIDERATIONS UNDER DORMANT COMMERCE
CLAUSE REVIEW .............................................................................................. 127
A. Is Economic Protectionism Ever a Legitimate Interest? ........................... 127
B. Can Pike v. Bruce Church Balancing be Done in a
Principled Manner? .................................................................................. 128
C. The Market Participant Doctrine .............................................................. 131
D. Dormant Commerce Clause is Mostly Statutory Interpretation,
Not Constitutional Law ............................................................................ 132
VI. C
ONCLUSION .................................................................................................... 134
I. I
NTRODUCTION
From the nation’s founding, the Court has always applied some version of
Dormant Commerce Clause review analysis.
1
That doctrine evolved during the first 200
*
Spurgeon E. Bell Distinguished Professor of Law, South Texas College of Law Houston. B.A., 1976, University
of Chicago; J.D., 1979, University of Wisconsin-Madison School of Law.
1. See generally Sam Kalen, Dormancy Versus Innovation: A Next Generation Dormant Commerce Clause, 65
O
KLA. L. REV. 381, 384–400 (2013).
110 TULSA LAW REVIEW [Vol. 59:1]
years of the nation’s history,
2
but at the Supreme Court level has remained relativity un-
changed since 1980.
3
At the lower federal court level, however, a number of variations in
Dormant Commerce Clause (“DCC”) doctrine have emerged.
4
The intent of this article is
to discuss those variations, place them within the context of the Supreme Court’s DCC
doctrine, and suggest ways in which the Supreme Court in some later DCC case could
resolve the lower court disagreements and provide a consistent, principled DCC doctrine
going forward, since in the Court’s most recent DCC case, Nat’l Pork Producers Council
v. Ross, these issues were not directly addressed.
5
In pursuit of this goal, Part II of this article will discuss the Supreme Court’s
development of DCC doctrine.
6
Part III will discuss variations emerging in the lower fed-
eral courts since 1980, particularly the precise nature of DCC review in Part III. A
7
and
when to apply the various DCC doctrinal tests in Part III. B.
8
Part IV will then discuss the
best way to clarify DCC doctrine in a later case,
9
and the best way to resolve the differences
in lower federal court DCC decision-making that have emerged since 1980.
10
Part V will
discuss a number of collateral issues surrounding DCC doctrine.
11
Part VI will provide a
conclusion, including discussion of the National Pork case.
12
To summarize the main points of this article, there are three basic issues for the
Court to consider regarding current DCC review. Issue one (1) is whether to continue using
Maine v. Taylor as a “third-order reasonableness balancing” test with “legitimate” interests
being used to justify state regulation or to reformulate Maine v. Taylor as a strict scrutiny
test, requiring “compelling” government interests to regulate and the state having to use
the “least burdensome effective alternative.”
13
Issue two (2) is whether to continue the
current doctrine where facial discrimination, discriminatory purpose, or discriminatory ef-
fects trigger Maine v. Taylor, and only even-handed regulation that nonetheless has some
burden on interstate commerce triggers the Pike v. Bruce Church test, or whether to switch
cases involving discriminatory effects to apply only the Pike v. Bruce Church test.
14
Issue
three (3) is whether even-handed regulations that place some burden on interstate com-
merce should continue to trigger the Pike v. Bruce Church test or whether to abandon any
DCC review in such cases, as some lower federal courts of appeals have done.
15
The conclusion reached in this article is that the Court should (1) clarify that
Maine v. Taylor is a “third-order reasonableness balancing” test, not strict scrutiny;
16
(2)
2. See generally James M. McGoldrick, Jr., The Dormant Commerce Clause: The Origin Story and the “Con-
siderable Uncertainties” – 1824 to 1945, 52 C
REIGHTON L. REV. 243, 243–90 (2019).
3. See generally E
RWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 454 (5th Ed. 2015)
(“[t]he overall approach to dormant commerce clause doctrine thus can be simply summarized”) (citing Julian
N. Eule, Laying the Dormant Commerce Clause to Rest, 91 Y
ALE L.J. 425 (1982)). See also Daniel A. Farber &
Robert E. Hudec, Free Trade and the Regulatory State: A GATT’s Eye View of the Dormant Commerce Clause,
47 V
AND. L. REV. 1401, 1411–18 (1994) (discussing the three different “categories” of discrimination in relation
to state legislation that regulates commerce, as well as a list of factors that the Court has identified as signs of
discrimination when analyzing facially neutral regulations).
4. See infra Part III.
5. 143 S. Ct. 1142 (2023). Because the issues were not directly addressed, a discussion of the relationship
between issues raised in this article and the plurality, multiple concurring, and dissenting in part opinions in
National Pork is reserved for the end of this article. See infra Part VI.
6. See infra Part II.
7. See infra Part III.A.
8. See infra Part III.B.
9. See infra Part IV.A.
10. See infra Part IV.B.
11. See infra Part V.
12. See infra Part VI.
13. See infra Part III.A.I; Maine v. Taylor,
477 U.S. 131 (1986).
14. See infra Part III.B.I; Pike v. Bruce Church,
397 U.S. 137 (1970).
15. See infra Part III.B.II; see, e.g., Park Pet Shop, Inc. v. City of Chicago, 872 F.3d 495, 502 (7th Cir. 2017).
16. See infra Part IV.A.
2024 DORMANT COMMERCE CLAUSE REVIEW 111
that only discriminatory effects should trigger the Pike v. Bruce Church test, leaving only
Maine v. Taylor for cases of facial discrimination or discriminatory purpose;
17
and (3) the
Court should continue to support using Pike v. Bruce Church for cases of even-handed
regulations that burden both intrastate and interstate commerce equally, as well as extend
the Pike v. Bruce Church test to cases of discriminatory effects, as recommended for issue
(2) above.
18
II. D
ORMANT COMMERCE CLAUSE REVIEW GENERALLY
A. Earlier Dormant Commerce Clause Doctrine
The Dormant Commerce Clause doctrine is based on the Court’s view of an im-
plied, or silent, purpose behind the Commerce Clause.
19
As stated in Bos. Stock Exch. v.
State Tax Comm’n, that implied purpose is to ensure that the basic purpose of the Com-
merce Clause, to ensure national economic solutions to national economic problems, is not
frustrated by state or local parochial legislation.
20
Such a purpose of the Commerce Clause
was identified by the Supreme Court in a unanimous opinion authored by Chief Justice
Marshall in 1824 in Gibbons v. Ogden.
21
Concurring in Gibbons, Justice Johnson argued that where Congress has the
power to regulate commerce, states have no power to regulate at all.
22
The majority in
Gibbons in 1824 acknowledged that this position “has some force,” but instead adopted
the view, consistent with the “dual theory of sovereignty,” and that even where Congress
has the power to regulate commerce, states retain their own power to regulate commerce
for local purposes as well.
23
The Marshall Court similarly held in 1829 in Willson v. Black
Bird Creek Marsh Co. that states are not barred by the Commerce Clause from interfering
with free trade when legislating for local purposes, in this case placing a dam across a local
river, unless the state law “under all the circumstances of the case, be considered as repug-
nant to the power to regulate commerce in its dormant state, or as being in conflict with
any law passed on the subject.”
24
The Court rejected the challenger’s argument that the
state law was invalid because the dam obstructed navigation on the river and that an un-
fettered right of “full and free navigation thereof” is constitutionally required.
25
The Taney Court clarified in 1837 that the power of the state to regulate com-
merce derives from the state’s own police powers, not from a delegated grant of power
17. See infra Part IV.B.I.
18. See infra Part IV.B.II.
19. C
HARLES D. KELSO & R. RANDALL KELSO, THE PATH OF CONSTITUTIONAL LAW § 20.3.2.1, at 863 (2007).
20. See Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 328 (1977); see also C
HARLES D. KELSO & R.
RANDALL KELSO, THE PATH OF CONSTITUTIONAL LAW §§ 20.3.2.1.C, at 878 n.178; 20.3.2.1.D, at 882 n.201–
03 (2007) (explaining that the Supreme Court has interpreted the Commerce Clause to limit the power of the
states regarding economic legislation and noting that the Supreme Court has invalidated state legislation when it
attempts to regulate transactions in other states or when its primary purpose or effect is to favor the local econ-
omy).
21. 22 U.S. 1, 195, 203–04 (1824) (“The genius and character of the whole government seem to be, that its
action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the
states generally. . . . [While i]nspection laws, quarantine laws, health laws of very description, as well as laws
for regulating the internal commerce of a State, and those which respect turnpikes, ferries, etc., are components
parts of this mass [of subject matters for state regulation . . . the] legislative power of the Union can reach them
. . . for national purposes.”).
22. Id. at 235–36 (Johnson, J., concurring). This is consistent with a theory of strong federal supremacy, dis-
cussed at K
ELSO & KELSO, supra note 19, §§ 18.1 & 18.1.1.
23. Gibbons, 22 U.S. at 209–10. See generally K
ELSO & KELSO, supra note 19, at § 20.3.2.1, at 863.
24. 27 U.S. 245, 252 (1829).
25. Id. at 252 n.1.
112 TULSA LAW REVIEW [Vol. 59:1]
from the Commerce Clause.
26
This power regulation was true unless, as indicated in Coo-
ley v. Board of Wardens, the subject was “of such a nature as to require exclusive legisla-
tion by Congress” and thus appropriate only for federal regulation. In contrast, some sub-
jects are “drawn from local knowledge and experience” such that they are subject only to
state regulation, and over some subjects there is concurrent state and federal power.
27
The Taney Court noted in 1855 that while the Court will make an initial determi-
nation in DCC cases as to whether a particular state statute impermissibly burdens com-
merce, Congress is the ultimate decisionmaker on whether a conflict exists between state
and federal law.
28
Thus, where Congress has constitutional power to regulate under the
Commerce Clause, Congress can consent to any state regulation of commerce it wishes;
and, as stated in Article I, § 10, cl. 3, with the consent of Congress, any state can enter into
an interstate “Agreement or Compact” with other states.
29
If Congress has consented, no
DCC challenge can be brought.
30
B. Modern Dormant Commerce Clause Doctrine
Since 1937, the Court adopted a two-tiered approach to Dormant Commerce
Clause doctrine.
31
Under the approach following Maine v. Taylor, state laws which dis-
criminate against interstate commerce are subjected to a heightened level of scrutiny when
the law is “affirmatively discriminatory against transactions rather than “only incidentally”
discriminatory.
32
Such “rank discrimination,” such as applying strict scrutiny against state
laws that “affirmatively discriminate” interstate commerce, clearly violates the purpose
behind the Commerce Clause.
33
Along with this, applying the Pike v. Bruce Church bal-
ancing test, a test that requires a lower burden for incidental transaction discrimination
than affirmative discrimination, to evenhanded legislation, has caused some Justices great
concern.
34
Like most judicially created doctrines, the Court has elaborated the dormant DCC
doctrine to respond to nuances presented by later factual cases coming before the Court.
The Court has noted that there are four kinds of DCC cases: (1) the state legislation burdens
26. Alderman v. Miln, 36 U.S. 102, 132–38, 153–58 (1837).
27. Cooley v. Bd. of Wardens, 53 U.S. 299, 319–20 (1851); see e.g., Veazie v. Moor, 55 U.S. 568, 571–75
(1852), (holding that Maine’s grant of an exclusive license of navigation on the upper part of the Penobscot
River, which is located entirely within Maine, was a proper exercise of state regulation). But see Woodruff v.
Parham, 75 U.S. 123, 138–40 (1868), (holding that a state may not regulate commerce purely external to the
state, nor impose a discriminatory tax on an article brought into it from another state).
28. Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 436 (1855) (II), modifying Pennsylvania v.
Wheeling & Belmont Bridge Co., 54 U.S. 518 (1851) (I).
29. U.S. CONST. art. I, § 10, cl. 3; see, e.g., Northeast Dairy Compact Commission, 61 Fed. Reg. 65604, 65604–
05 (Dec.13, 1996) (permitting six New England states to regulate the price of milk).
30. See, e.g., Western and Southern Life Ins. Co. v. Bd. of Equalization, 451 U.S. 648, 653–54 (1981) (dis-
cussing that under the McCarran-Ferguson Act of 1945, Congress has exempted from Dormant Commerce
Clause review state regulation and taxing of the business of insurance). See also Article I – Stare Decisis for
Constitutional Default Rules – Dormant Commerce Clause – South Dakota v. Wayfair, Inc., 132 H
ARV. L. REV.
277, 277 (2018) (“Dormant commerce clause decisions technically produce constitutional holdings, but Congress
may override them at will.”). A contrary view appears in Norman R. Williams, Why Congress May Not “Over-
rule” the Dormant Commerce Clause, 53 UCLA L. REV. 153, 155–60 (2005) (Dormant Commerce Clause Doc-
trine should not be viewed as based on implied congressional intent, but as a constitutional rule denying states
the ability to excessively burden interstate commerce).
31. See Nat'l Lab. Rels. Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 29, 32–33 (1937).
32. Maine v. Taylor,
477 U.S. 131, 138 (1986); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471
(1981); U & I Sanitation v. City of Columbus, 205 F.3d 1063, 1067 (8th Cir. 2000).
33. Taylor, 477 U.S. at 138; see also Tyler Pipe Indus., Inc. v. Wash. Dept. of Revenue, 483 U.S. 231, 266
(1987).
34. Pike v. Bruce Church,
397 U.S. 137, 142 (1970); see, e.g., Bendix Autolite Corp. v. Midwesco Enter.s,
Inc., 486 U.S. 888, 893, 897–99 (1988) (Scalia, J. concurring).
2024 DORMANT COMMERCE CLAUSE REVIEW 113
interstate commerce on its face; (2) the state legislation is the product of a purpose to
discriminate against interstate commerce; (3) the state legislation has a discriminatory ef-
fect on interstate commerce; and (4) the state regulates in-state and out-of-state commerce
even-handedly and only involves an incidental effect on interstate commerce.
35
In the first
three kinds of cases, the Court indicated that the state bears the burden to justify its regu-
lation.
36
For state regulation that burdens interstate commerce on its face, the Court
squarely places the burden on the state to establish the validity of the enactment.
37
The
Court has stated that the same approach applies to regulations that have a discriminatory
purpose
38
or discriminatory effect.
39
In determining whether the regulation was passed with a discriminatory purpose,
the Court uses the same considerations used in equal protection cases to determine dis-
criminatory purpose: Discriminatory effects, background circumstances, legislative his-
tory, and other evidence of motive.
40
This can involve both direct and indirect evidence of
purpose.
41
Regarding the fourth kind of case, the Court held in Pike v. Bruce Church, Inc.:
If a state statute has only indirect effects on interstate commerce and regulates even-
handedly, the DCC is violated only if plaintiff shows that the burden on interstate com-
merce is clearly excessive in relation to local interests.
42
When making that determina-
tion, the Court considers the “nature of the local interest and . . . whether it could be pro-
moted as well [by laws having] a lesser impact on interstate activities.”
43
The balancing test is the same in all sets of cases, with only the burden shifting
from being on the challenger in Pike v. Bruce Church to being on the State in Maine v.
Taylor.
44
For example, in Bendix Autolite Corp. v. Midwesco Enter.s, Inc., the Court con-
sidered whether an Ohio statute, in which Ohio tolled a four-year statute of limitations on
breach of contract and fraud cases for persons or corporations who are not “present” in the
state, was facially discriminatory.
45
The Court acknowledged that the statute “might have
been held to be a discrimination that invalidates without extended inquiry.”
46
Instead, the
Court did a full Pike v. Bruce Church balancing test, but with the burden on the State to
justify the regulation.
47
Given that balance, the Court concluded the regulation failed post-
35. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n.15 (1981); U & I Sanitation v. City of
Columbus, 205 F.3d 1063, 1067 (8th Cir. 2000); CHEMERINSKY, supra note 3, at 454–65.
36. Taylor, 477 U.S. at 138; Clover Leaf Creamery Co., 449 U.S. at 471; U & I Sanitation, 205 F.3d at 1067.
37. Taylor,
477 U.S. 131, 138 (1986); see Dean Milk Co. v. City of Madison, 340 U.S. 349, 352–54 (1951);
see also Hughes v. Oklahoma, 441 U.S. 1727 (1979).
38. See, e.g., Clover Leaf Creamery Co., 449 U.S. 456, 471 n.15 (1981). See also Hunt v. Washington State
Apple Advert. Comm’n, 432 U.S. 333, 352–54 (1977) (stating that North Carolina had a discriminatory purpose
in barring state grade notices on imported apple containers where Washington had a superior grading system).
39. See, e.g., Taylor, 477 U.S. 131, 148 n.19 (1986) (discriminatory effect may be found where state “re-
spond[s] to legitimate local concerns by discriminating arbitrarily against interstate trade”); GSW, Inc. v. Long
County, Ga., 999 F.2d 1508, 1517 (11th Cir. 1993) (discriminatory effect where county imposed 150–mile re-
striction on origin of waste); Gov’t Suppliers Consol. Serv., Inc. v. Bayh, 975 F.2d 1267, 1278–79 (7th Cir.
1992) (discriminatory effect where state statute imposed “backhaul ban” and additional registration and sticker-
ing requirements) (cert. denied, 506 U.S. 1053 (1993)).
40. Arlington Heights v. Metropolitan Housing Dev. Co., 429 U.S. 252, 266–68 (1977).
41. See, e.g., SDDS, Inc. v. South Dakota, 47 F.3d 263, 268–69 (8th Cir. 1995). An example of “direct evidence”
needed for a discriminatory purpose includes having a measure that foreseeably does not apply to interstate com-
merce and having legislative history that states the discriminatory purpose. When it comes to determining if an
indirect purpose is discriminatory, an indirect purpose is discriminatory, when it is “somewhat suspect” that the
means to achieve a “ostensible . . . . purpose” are ineffective.
42. 397 U.S. 137, 142 (1970).
43. Id.
44. Taylor,
477 U.S. 131, 137, 152 (1986); Pike, 397 U.S. 137, 142 (1970).
45. Bendix Autolite Corp. v. Midwesco Enters, Inc., 486 U.S. 888, 890 (1988).
46. Id. at 891.
47. Id. at 891–94.
114 TULSA LAW REVIEW [Vol. 59:1]
1937 DCC review balancing as an excessive burden on interstate commerce.
48
Similarly,
in Brown-Forman Distillers Co. v. New York State Liquor Auth., the Court noted:
This Court has adopted what amounts to a two-tiered approach to ana-
lyzing state economic regulation under the Commerce Clause. When a
state statute directly regulates or discriminates against interstate com-
merce, or when its effect is to favor in-state economic interests over out-
of-state interests, we have generally struck down the statute without fur-
ther inquiry. When, however, a statute has only indirect effects on inter-
state commerce and regulates evenhandedly, we have examined whether
the State's interest is legitimate and whether the burden on interstate
commerce clearly exceeds the local benefits. We have also recognized
that there is no clear line separating the category of state regulation that
is virtually per se invalid under the Commerce Clause, and the category
subject to the Pike v. Bruce Church balancing approach. In either situa-
tion the critical consideration is the overall effect of the statute on both
local and interstate activity.
49
This Court has adopted what amounts to a two-tiered approach to ana-
lyzing state economic regulation under the Commerce Clause. When a
state statute directly regulates or discriminates against interstate com-
merce, or when its effect is to favor in-state economic interests over out-
of-state interests, we have generally struck down the statute without fur-
ther inquiry. When, however, a statute has only indirect effects on inter-
state commerce and regulates evenhandedly, we have examined whether
the State's interest is legitimate and whether the burden on interstate
commerce clearly exceeds the local benefits. We have also recognized
that there is no clear line separating the category of state regulation that
is virtually per se invalid under the Commerce Clause, and the category
subject to the Pike v. Bruce Church balancing approach. In either situa-
tion the critical consideration is the overall effect of the statute on both
local and interstate activity.
In practice, however, the Court stated that there is “a virtual per se rule of inva-
lidity” for state legislation facially discriminating against interstate commerce or involving
a discriminatory purpose or effect.
50
As the “virtual per se” language suggests, it can prove
very difficult for the state to meet its burden in cases of discriminatory legislation. For
example, in Wyoming v. Oklahoma,
51
Oklahoma legislation required that coal-fired elec-
tric generating plants producing power for sale in Oklahoma must burn a mixture of coal
containing at least ten percent Oklahoma-mined coal. Oklahoma's concern to lessen the
state's reliance on a single source of coal delivered over a single rail line was held inade-
quate to justify the law in terms of the local benefits and the unavailability of nondiscrim-
inatory alternatives because the state was using the illegitimate means of attempting to
48. Id. at 894–95.
49. 476 U.S. at 578–79 (1986) (citing City of Phila. v. New Jersey, 437 U.S. 617 (1978)); Shafer v. Farmers
Grain Co., 268 U.S. 189 (1925); Edgar v. MITE Corp., 457 U.S. 624, 640–43 (1982); Raymond Motor Transp.,
Inc. v. Rice, 434 U.S. 429, 440–41 (1978); Pike v. Bruce Church, 397 U.S. 137, 142 (1970).
50. City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978): Raymond Motor Transp. v. Rice, 434 U.S.
429, 439–41 (1978).
51. Wyoming v. Oklahoma, 502 U.S. 437, 440–41 (1992).
2024 DORMANT COMMERCE CLAUSE REVIEW 115
isolate itself from the national economy.
52
Further, Congress had not unambiguously man-
ifested an intent to permit such a violation of the Commerce Clause as Oklahoma here
attempted to justify.
53
However, in Maine v. Taylor, the Court held that Maine could bar
the import of baitfish in order to protect a fragile fishery environment from parasites, there
being no reasonably available alternative testing mechanism to keep non-indigenous spe-
cies from harming Maine’s rivers.
54
As these cases suggest, the Court has continued to reflect the basic principle of
free trade among the States. As stated, in 1977, the Court in Boston Stock Exch. v. State
Tax Comm’n, stated:
[W]e begin with the principle that “[t]he very purpose of the Commerce
Clause was to create an area of free trade among the several states . . . .
It is now established beyond dispute that 'the Commerce Clause was not
merely an authorization to Congress to enact laws for the protection and
encouragement of commerce among the States, but by its own force cre-
ated an area of trade free from interference by the States . . . . [T]he
Commerce Clause even without implementing legislation by Congress
is a limitation upon the power of the States.”
55
The Court continues to use the tests derived from Pike v. Bruce Church and Maine
v. Taylor, echoing Maine v. Taylor in stating that a state law that discriminates against
interstate commerce by putting burdens on interstate commerce not shared by local inter-
ests favored by the legislation must be justified by the state through showing that the law
serves a legitimate local interest, unrelated to economic protectionism, that cannot be
served as well by reasonable nondiscriminatory means.
56
Of course, federal law, if "un-
mistakably clear," can sanction state laws that burden interstate commerce in ways the
Court would otherwise hold invalid because DCC review, like preemption, is ultimately a
matter of deciphering congressional intent.
57
III. Q
UESTIONS EMERGING THE LAST 30 YEARS
A. The Nature of Dormant Commerce Clause Review
i. The Nature of Maine v. Taylor Review
One issue regarding DCC review is whether the Maine v. Taylor test for facial
discrimination or discriminatory purpose or effect is a strict scrutiny kind of test or rather
just a version of the Pike v. Bruce Church balancing test but with the burden shifted from
the challenger to show the government regulation is “clearly excessive” to the burden on
52. Id. at 454–57.
53. Id. at 457–59.
54. 477 U.S. at 131, 144–52 (1986).
55. Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 328 (1977) (citing Freeman v. Hewit, 329 U.S.
249, 252 (1946)).
56. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 596–97 (1997);
Taylor, 477 U.S. 131, 138 (1986).
57. See, e.g., Fort Gratiot Landfill, Inc. v. Mich. Dep’t of Nat. Res., 504 U.S. 353, 358-–60 (1992); New Energy
Co. of Indiana v. Limbach, 486 U.S. 269, 273–74 (1988).
116 TULSA LAW REVIEW [Vol. 59:1]
the government to prove that the regulation is not “excessive.”
58
The Court phased the
relevant test in Maine v. Taylor as follows:
The Commerce Clause significantly limits the ability of States and lo-
calities to regulate or otherwise burden the flow of interstate commerce,
but it does not elevate free trade above all other values. As long as a
State does not needlessly obstruct interstate trade or attempt to “place
itself in a position of economic isolation,” it retains broad regulatory
authority to protect the health and safety of its citizens and the integrity
of its natural resources. The evidence in this case amply supports the
District Court's findings that Maine's ban on the importation of live bait-
fish serves legitimate local purposes that could not adequately be served
by available nondiscriminatory alternatives. This is not a case of arbi-
trary discrimination against interstate commerce; the record suggests
that Maine has legitimate reasons, “apart from their origin, to treat [out-
of-state baitfish] differently.”
59
Despite this language, in some later cases the Court has indicated that the facial
discrimination cases like Maine v. Taylor involve “the strictest scrutiny” and in practice
can involve “a virtual per se rule” of invalidity,
60
which suggests an approach akin to a
strict scrutiny approach. However, the cases did not require the states to advance “com-
pelling governmental interests” to support their laws.
61
They only adopted the standard of
“legitimate governmental interests” used under Pike v. Bruce Church, as indicated in the
quote from Maine v. Taylor above.
62
Further, despite language in some cases suggesting
that under Maine v. Taylor the “less discriminatory alternatives” component of DCC re-
view is a strict scrutiny “least restrictive alternative” test,
63
the Court has never indicated
consideration of less discriminatory alternatives is necessarily different under Maine v.
Taylor than in Pike v. Bruce Church.
64
58. Maine v. Taylor, 477 U.S. 131, 131 (1986).
59. Id. at 151–52 (citing Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935); City of Phila. v. New Jersey,
437 U.S. 617, 627 (1978)).
60. See, e.g., City of Phila., 437 U.S. 617, 619, 624, 628 (1978) (banning importation of waste generated or
collected outside of New Jersey).
61. Taylor, 477 U.S. at 151–52.
62. Id. 151–52 (citing Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935); City of Phila. v. New Jersey,
437 U.S. 617, 627 (1978)).
63. See, e.g., U & I Sanitation v. City of Columbus, 205 F.3d 1063, 1068 (8th Cir. 2000) (“If the ordinance
overtly discriminates against interstate commerce on its face or through its purpose or effects, then . . . [t]he
ordinance is presumed invalid unless the City can demonstrate that the ordinance serves some legitimate purpose
unrelated to limiting interstate commerce and that the ordinance is the only possible way to achieve this pur-
pose.”) (emphasis added).
64. Compare C & A Carbone, Inc. v. Town of Clarkson, 511 U.S. 383, 393 (1994) (stating the defendant had
a “number of nondiscriminatory alternatives. . .”) with Taylor, 477 U.S. 131 (1986) (finding that Maine’s ban on
import baitfish was the only way to protect native fish species); see also
CHEMERINSKY, supra note 3, at 464
(noting that where Pike balancing is applied, the Court has never solely “invalidated a nondiscriminatory state
law on the ground that the goal could have been achieved through a means less burdensome on interstate com-
merce.”). The source of some of the confusion may be C & A Carbone, Inc. v. Town of Clarkson, 511 U.S. 383,
392 (1994). There, the Court said, “[d]iscrimination against interstate commerce in favor of local businesses or
investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under
rigorous scrutiny, that it has no other means to advance a legitimate local interest.” Id. (citing Maine v. Taylor,
477 U.S. 131 (1986)) (upholding Maine’s ban on the import of baitfish because Maine had no other way to
prevent the spread of parasites and the adulteration of its native fish species). But Maine did not necessarily
involve a “least restrictive alternative” approach, as the Court indicated only that a “State must make reasonable
efforts to avoid restraining the free flow of commerce across its borders . . . .” 477 U.S. at 147. Even in Carbone
the Court recognized that the town of “Clarkson has any number of nondiscriminatory alternatives for addressing
the health and environmental problems alleged to justify the ordinance in question. The most obvious would be
2024 DORMANT COMMERCE CLAUSE REVIEW 117
Conversely, some lower federal courts seem to note that Maine is merely Pike
balancing, but with the burden applied to the State.
65
For example, in McNeilus Truck &
Mfg., Inc. v. Ohio, the Sixth Circuit Court of Appeals cited Supreme Court opinions sug-
gesting that in both Pike and Taylor kinds of cases, the “critical consideration is the overall
effect of the statute on both local and interstate activity.”
66
The McNeilus court also noted
that in a Taylor kind of case, which involves discrimination against interstate commerce,
the state’s burden to justify their statute “both in terms of the local benefits flowing from
the statute and the unavailability of nondiscriminatory alternatives adequate to preserve
the local interests at stake.”
67
The Court then related that part of the analysis to the similar
focus on less discriminatory alternatives in Pike.
68
Despite this conclusion, some lower courts, based on the “strictest scrutiny” and
“virtual per se rule of invalidity” language have begun to apply a version of strict scrutiny
when Maine v. Taylor applies, as the Fourth Circuit Court of Appeals did in Waste Mgmt.
Holdings, Inc. v. Gilmore.
69
The Seventh Circuit has similarly found that when laws “ex-
plicitly discriminate against interstate commerce[,]” then these laws are “presumptively
unconstitutional” and trigger strict scrutiny.
70
So, too, has the Eighth Circuit.
71
Although applying strict scrutiny, the Gilmore court would have permitted the
state to satisfy the first prong of strict scrutiny based not on showing a compelling govern-
mental interest, the normal strict scrutiny standard, but rather only by showing a “legiti-
mate” governmental interest “other than economic protectionism.”
72
The same is true of
the other Circuit Court of Appeals using the “strict scrutiny” language.
73
In Maine v. Tay-
lor, the Supreme Court did indicate that “legitimate local purpose” could be considered
for the State to meet its burden.
74
This less than strict scrutiny kind of approach is sup-
ported by Supreme Court precedents, as the Gilmore court noted.
75
uniform safety regulations enacted without the object to discriminate.” Id. at 393. Thus, Carbone was not a case
where despite using a very narrowly tailored approach the regulation was not the “least restrictive alternative.”
It was a case where many less burdensome alternatives existed. This is similar to Pike v. Bruce Church balancing.
See generally C
HEMERINSKY, supra note 3, at 464 (noting that where Pike balancing is applied, the Court has
never solely “invalidated a nondiscriminatory state law on the ground that the goal could have been achieved
through a means less burdensome on interstate commerce.”). If solely invalidated on such a ground that would
suggest a “least burdensome effective alternative” test was being applied.
65. See, e.g, McNeilus Truck & Manufacturing, Inc. v. Ohio, 226 F.3d 429 (6th
Cir. 2002).
66. Id. at 441–42 (6th
Cir. 2002) (citing Raymond Motor Transp. Co. v. Rice, 434 U.S. 429, 440–41 (1978));
Brown-Forman Distillers Co. v. New York State Liquor Auth., 476 U.S. 573, 578–79 (1986).
67. Id. at 443 (citing Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 353 (1977); Taylor, 477
U.S. at 141; Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Reflecting some of the confusion, despite this
language in McNeilus that both Pike and Maine involve balancing the overall effect on interstate commerce, the
Court referred to Maine as a “strict scrutiny” approach. McNeilus, 226 F.3d at 444.
68. Id. at 443 (citing Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 353 (1977); Taylor, 477
U.S. at 141; Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Reflecting some of the confusion, despite this
language in McNeilus that both Pike and Maine involve balancing the overall effect on interstate commerce, the
Court referred to Maine as a “strict scrutiny” approach. McNeilus, 226 F.3d at 444.
69. 252 F.3d 316, 333–34, 342 (4th Cir. 2001) (characterizing Maine v. Taylor as a “strict scrutiny” test and
applying a “least discriminatory means” requirement.).
70. Park Pet Shop, Inc. v. City of Chi., 872 F.3d 495, 501 (7th Cir. 2017) (discussing “presumptive unconsti-
tutional” language); Legato Vapors, LLC v. Cook, 847 F.3d 825, 834–35 & n.1 (7th Cir. 2017) (noting Maine v.
Taylor is a “strict scrutiny” approach).
71. U & I Sanitation v. City of Columbus, 205 F.3d 1063, 1067 (8th Cir. 2000) (using the phrase “rigorous
scrutiny”).
72. Gilmore, 252 F.3d at 341–42.
73. See, e.g., Legato Vapors, 847 F.3d at 830, 835.
74. 477 U.S. at 138.
75. Gilmore, 252 F.3d at 341.
118 TULSA LAW REVIEW [Vol. 59:1]
Regarding the “less restrictive alternative” analysis, the Fourth Circuit did apply
in Gilmore a rigorous, strict scrutiny “least discriminatory alternative” analysis.
76
How-
ever, in Maine v. Taylor the Court only said, “[a] State must make reasonable efforts to
avoid restraining the free flow of commerce across its borders . . . .”
77
At some point, the
Supreme Court will need to decide which approach to adopt.
ii. The Nature of Pike v. Bruce Church Review
The Pike v. Bruce Church, Inc. test for even-handed state regulations, which nev-
ertheless incidentally burden interstate commerce, is more stringent than the minimum
rational basis review test used under the Equal Protection Clause.
78
Under minimum ra-
tional basis review, courts should substantially defer to legislative judgment concerning
the weight given to the statute’s conceivable purposes and the rationality of the statutory
means to advance that end.
79
Instead, because of the suspicion of state legislative motives
in cases involving DCC review, no such deference is given under the DCC.
80
Instead,
courts determine for themselves the extent of the legislature’s legitimate purposes,
81
and
whether the means adopted reflect a “clearly excessive” burden on interstate commerce.
82
By engaging in DCC review, the district court hears the evidence concerning the state’s
alleged legitimate interest, as well as evidence concerning the burden on interstate com-
merce.
83
The district court then balances the extent of the state’s benefits against the degree
of interference with interstate commerce.
84
As a factual decision made by the district court,
this conclusion will be entitled to deference on appeal and subject to being reversed on
appeal only if it is “clearly erroneous.”
85
76. Id. at 342–45.
77. 477 U.S. at 147.
78. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); see also U.S.
CONST. amend. XIV, § 1.
79. See, e.g., Heller v. Doe, 509 U.S. 312, 320–21 (1993) (noting that a statutory classification need not be
supported by empirical evidence and must be upheld if it is based on any rational speculation).
[a] classification "must be upheld against equal protection challenge if there is any rea-
sonably conceivable state of facts that could provide a rational basis for the classification."
A State, moreover, has no obligation to produce evidence to sustain the rationality of a
statutory classification. "[A] legislative choice is not subject to courtroom factfinding and
may be based on rational speculation unsupported by evidence or empirical data." A stat-
ute is presumed constitutional, and "[t]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it," whether or not
the basis has a foundation in the record. Finally, courts are compelled under rational-basis
review to accept a legislature's generalizations even when there is an imperfect fit between
means and ends. A classification does not fail rational-basis review because it "'is not made
with mathematical nicety or because in practice it results in some inequality.'" . . . . [On
the other hand,] even the standard of rationality as we so often have defined it must find
some footing in the realities of the subject addressed by the legislation.
80. See K
ELSO & KELSO, supra note 19, § 26.1.1.1, at 1088 nn.22–24.
81. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 476 n.2 (1981).
82. See, e.g., Kassel v. Consol. Freightways Corp., 450 U.S. 662, 670–71 (1981). Reflecting their predisposition
to favor states, conservative Holmesian Justices Stewart and Rehnquist, along with conservative formalist Chief
Justice Burger, dissented from this conclusion in Kassel, stating that if a traffic safety law is not merely a pretext
for discrimination the Court should ask only whether it is rational. Id. at 691–93 (Rehnquist, J., joined by Burger,
C.J., and Stewart, J., dissenting). The rest of the Court, however, rejected this view.
83. Id. at 667.
84. Id. at 670–71.
85. Maine v. Taylor, 477 U.S. 131, 144–46 (1986). See also Bibb v. Navajo,
359 U.S. 520, 524–30 (1959)
(balancing test of Southern Pacific was used to invalidate an Illinois ban on straight mudflaps, which were held
to have inconclusive safety benefits while being inconsistent with laws in 45 other states.); Kassel,
450 U.S. 662,
669–76 (1981) (finding Iowa's ban on 65-foot doubles invalid). Mark V. Tushnet, Rethinking the Dormant Com-
merce Clause, 1979 W
IS. L. REV. 125, 126–30 (1979). On recent Pike review, see Rocky Mountain Farmers
2024 DORMANT COMMERCE CLAUSE REVIEW 119
Because of the lack of substantial deference to the legislature and the Court bal-
ancing for itself the amount of the benefits and burdens to determine if the burdens are
“clearly excessive,” the Pike v. Bruce Church test reflects what can be called a kind of
“second-order” reasonableness review, rather than minimum rational review.
86
Because
the burden shifts to the government in the other three kinds of dormant commerce clause
cases, these cases can be called a kind of “third-order” reasonableness review.
87
This is
not a form of heightened strict scrutiny, however, because the Court will not restrict itself
to “actual purposes” as occurs at strict scrutiny, in spite of Justices Brennan and Marshall’s
attempt to support the “actual purpose” standard,
88
and the Court will allow the state to
use “legitimate” government interests to support the statute rather than “compelling”
government interests of strict scrutiny.
89
B. When to Apply Maine v. Taylor or Pike v. Bruce Church
i. Standards for Discriminatory Burdens to Trigger Maine v. Taylor
Under prevailing doctrine, the Maine v. Taylor test is clearly triggered if the state
regulation involves facial discrimination against interstate commerce
90
or was passed
based on a court conclusion that it involves a discriminatory purpose.
91
The remaining
question involves whether the Maine v. Taylor test is triggered when the state regulation,
although neutral on its face and lacking a discriminatory purpose, nonetheless has the ef-
fect of imposing discriminatory burdens on interstate commerce. While the traditional
phrasing of the test indicates that Maine v. Taylor should be applied in such circum-
stances,
92
a number of Circuit Courts of Appeals have departed from this understanding
over the last thirty years.
93
For example, while acknowledging that facial discrimination triggers the higher
Maine v. Taylor kind of review,
he Seventh Circuit has said that when considering
“[f]acially nondiscriminatory laws” that “have a discriminatory effect on interstate com-
merce,” one must subcategorize the case according to the strength of their effects. If the
discriminatory effect is powerful—“acting as an embargo on interstate commerce without
hindering intrastate sales”—the Court treats the law as if it were a first-category, facially
discriminatory statute.
94
If the facially nondiscriminatory law imposes only “‘mild dispar-
ate effects”’ and has prospective justifications that are “neutral” between interstate and
Union v. Corey, 730 F.3d 1070 (9th
Cir. 2013) (finding California’s low carbon fuel standard not discriminatory,
even though formed with reference to state boundaries, since it treats ethanol from all sources evenhandedly);
Pharmaceutical Rsch. & Mfrs. of Am. v. County of Alameda, 768 F.3d 1037 (9th
Cir. 2014) (requiring prescrip-
tion drug manufacturers to pay cost of collecting and disposing unused medicines from local residents constitu-
tional under Pike); Am. Fuel & Petro. Mfrs. v. O’Keefe, 903 F.3d 903 (9th
Cir. 2018) (finding that Oregon’s
“Clean Fuels Program” to reduce greenhouse gases in the state satisfies Pike).
86. For discussion of “second-order” reasonableness review generally, see K
ELSO & KELSO, supra note 19, §
7.2.1, at 185.
87. For discussion of “third-order” reasonableness review generally, see K
ELSO & KELSO, supra note 19, §
7.2.1, at 185.
88. Id. at § 20.3.2.1 (Brennan, J., joined by Marshall, J., concurring). On use of “actual purposes” only at strict
scrutiny, see, e.g., Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996) (“To be a compelling interest [under strict scru-
tiny], the State must show that the alleged objective was the legislature’s ‘actual purpose.’”).
89. See Maine v. Taylor, 477 U.S. 131, 151–52 (1986).
90. See supra notes 35–37 and accompanying text.
91. Taylor, 477 U.S. 131, 138 (1986).
92. Id.
93. See Petition for Writ of Certiorari, Minerva Dairy, Inc. v. Harsdorf, No. 18-1145, 2019 WL 1077391, at
*10-12 (U.S. Mar. 1, 2019).
94. Park Pet Shop, Inc. v. City of Chi., 872 F.3d 495, 501 (7th Cir. 2017) (citation omitted) (citing Nat'l Paint
& Coatings Ass’n v. City of Chi., 45 F.3d 1124, 1130–31) (7th Cir. 1995)).
120 TULSA LAW REVIEW [Vol. 59:1]
intrastate commerce, then the Court applies Pike v. Bruce Church.
95
The Court balances
the “burden on interstate commerce against the nature and strength of the state or local
interest at stake,”
96
all the while keeping keenly aware of the dangers of such an all-things-
considered analysis.
97
The Second Circuit has similarly stated that Pike, not Maine v. Tay-
lor, only applies to any claim that the statute imposes “a burden on interstate commerce
that is qualitatively or quantitatively different from that imposed on intrastate com-
merce.”
98
Similarly, under the Third Circuit's formulation, when an out-of-state plaintiff
shows discriminatory effects against out-of-state commerce, Pike is triggered because the
Third Circuit reads the “incidental burdens” language of Pike to mean “incidental burdens
. . . that discriminate against interstate commerce.”
99
ii. Standards to Trigger Pike v. Bruce Church Review
a. Some Kind of Discrimination Against Interstate Commerce Needed
Even to Trigger Pike
The language in Pike v. Bruce Church states that it applies to regulations that
“regulate evenhandedly” and only have “indirect effects on interstate commerce.
100
The
“evenhandedly” language suggests that such regulation does not discriminate in any way
against interstate commerce, but merely has the “indirect” or “incidental” effect of bur-
dening interstate commerce, although its operation applies both to in-state and out-of-state
activities.
101
Under Supreme Court precedents, such regulation is still a problem under the
DCC because such regulation still harms the underlying commitment to free trade among
the states.
102
Despite this fact, a number of Circuit Courts of Appeals have limited Pike v.
Bruce Church balancing test to circumstances with some discriminatory effect and have
stated that absent such effects no heightened DCC analysis need be done.
103
The only anal-
ysis is the standard, minimum rational basis review applicable to any economic regulation
under the Due Process or Equal Protection Clauses.
104
As stated by the Seventh Circuit,
where nondiscriminatory economic regulations simply affect interstate commerce, “with-
out any reallocation [of commerce] among jurisdictions” or, in other words, without
95. Id. at 501–02 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
96. Id. at 501–02 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
97. See, e.g., Wiesmueller v. Kosobucki, 571 F.3d 699, 704 (7th Cir. 2009) (“The judiciary lacks the time and
the knowledge to be able to strike a fine balance” between a law's burdens and benefits under Pike).
98. Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 109 (2d Cir. 2001).
99. Instructional Sys., Inc. v. Comput. Curriculum Corp., 35 F.3d 813, 826 (3d Cir. 1994). The Fifth Circuit
also applies only Pike balancing once a threshold showing of disparate impact on interstate commerce is made.
See Nat'l Solid Waste Mgmt. Ass'n v. Pine Belt Reg'l Solid Waste Mgmt. Auth., 389 F.3d 491, 502 (5th Cir.
2004) (citing Automated Salvage Transp., Inc. v. Wheelabrator Env’t Sys., Inc., 155 F.3d 59, 75 (2d Cir. 1998)).
100. 397 U.S. 137, 142 (1970).
101. See, e.g, Dorrance v. McCarthy, 957 F.2d 761, 764 (10th Cir. 1992) (“By definition, a statute that regulates
evenhandedly does not impose a different burden on interstate commerce than it does on intrastate commerce”
and “the Pike analysis” still applies).
102. See, e.g., S. Pac. Co. v. Arizona, 325 U.S. 761, 793 (1945) (Arizona train length rules); Bibb v. Navajo
Freight Lines, Inc., 359 U.S. 520, 529 (1959) (Illinois mud-guard law); Pike v. Bruce Church, Inc., 397 U.S. 137,
146 (1970) (illustrating Arizona ban on export of cantaloupes unless marked “Packed in Arizona,” applied to a
shipper who would have had to spend $200,000 to build a packing plant); Kassel v. Consol. Freightways Corp.,
450 U.S. 662, 678–79 (1981) (Iowa ban on 65-foot double semi-trucks); Edgar v. MITE Corp., 457 U.S. 624,
646 (1982) (requiring prior registration of takeover offers where residents owned 10% of a company's securities,
and limiting offeror communication with shareholders). On the general commitment to free trade, see, e.g., Bos.
Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 328 (1977).
103. Park Pet Shop, Inc. v. City of Chi., 872 F.3d 495, 502 (7th Cir. 2017).
104. Id.
2024 DORMANT COMMERCE CLAUSE REVIEW 121
“giv[ing] local firms any competitive advantage over those located elsewhere,” these laws
comply with the DCC if they satisfy “the normal rational-basis standard.”
105
Similarly, the Second Circuit will not entertain a dormant Commerce Clause
claim where those burdens do not disparately impact out-of-state interests, even where the
burdens on interstate commerce are demonstrably significant.
106
Further, the Second Cir-
cuit has indicated that only certain types of burdens will be considered as disparately af-
fecting out-of-state commerce.
107
The Third Circuit has also refused to rule on Pike claims
even where the district court made findings that the burdens on interstate commerce were
real and significant.
108
The Fifth Circuit also requires a threshold showing of disparate
impact on interstate commerce before it will undertake Pike balancing.
109
Although such tests have been met with criticism even within the relevant
Circuits,
110
they remain a bar to otherwise valid DCC claims. Under such formulations,
Circuit Courts of Appeals have even rejected claims where the effect of a local ordinance
would only be felt by out-of-state interests, because the law was facially neutral and
105. Id.
106. See, e.g., Gary D. Peake Excavating Inc. v. Town Bd. of Hancock, 93 F.3d 68, 74–75 (2d Cir. 1996). See
also Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 109 (2d Cir. 2001) (citations omitted):
The focus of our disparate burden analysis is a state's shifting the costs of regulation to
other states. “State regulations affecting interstate commerce, whose purpose or effect is
to gain for those within the state an advantage at the expense of those without, or to burden
those out of the state without any corresponding advantage to those within, have been
thought to impinge upon the constitutional prohibition even though Congress has not
acted.” Such circumstances raise the risk that state policymakers will not bear the true
political costs of their decisions, because those costs will fall in some measure on the res-
idents of other political jurisdictions. “[T]he Court has often recognized that to the extent
that the burden of state regulation falls on interests outside the state, it is unlikely to be
alleviated by the operation of those political restraints normally exerted when interests
within the state are affected.” Accordingly, the justification for judicial intervention in the
absence of congressional action may outweigh the strong tradition of judicial deference to
legislative decisions, and the strain on judicial competence imposed by comprehensive
cost/benefit balancing.
107. Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1015 (2d Cir. 1994) (citations omitted):
A review of recent Supreme Court cases reveals that certain types of impacts on interstate
commerce are of special importance in the balance with the state's putative interest. These
impacts include the disruption of travel and shipping due to a lack of uniformity in state
laws, impacts on commerce beyond the borders of the defendant state, and impacts that
fall more heavily on out-of-state interests. Because the purpose of the Commerce Clause
is to protect the nation against economic Balkanization legitimate regulations that have
none of these effects arguably are not subject to invalidation under the Commerce Clause.
108. See Ford Motor Co. v. Ins. Comm'r of Pa., 874 F.2d 926, 943–44 (3d Cir. 1989); see also Instructional
Sys., Inc. v. Comput. Curriculum Corp., 35 F.3d 813, 827 (3d Cir. 1994) (“devastating” interstate consequences
not sufficient to raise a claim under Pike).
109. Nat'l Solid Waste Mgmt. Ass'n v. Pine Belt Reg'l Solid Waste Mgmt. Auth., 389 F.3d 491, 502 (5th Cir.
2004) (citing Automated Salvage Transp., Inc. v. Wheelabrator Ev’t. Sys., Inc., 155 F.3d 59, 75 (2d Cir. 1998)).
Unlike the Second Circuit, however, the Fifth Circuit focuses its disparate impact analysis to instances where the
statute or regulation “inhibits the flow of goods interstate.” Allstate Ins. Co. v. Abbott, 495 F.3d 151, 163 (5th
Cir. 2007).
110. See Park Pet Shop, Inc. v. City of Chi., 872 F.3d 495, 504-05 (7th Cir. 2017) (Hamilton, J., dissenting)
(“[T]he Supreme Court itself has not yet confined the balancing test under Pike, 397 U.S. 137 (1970), as narrowly
as my colleagues suggest.”).
122 TULSA LAW REVIEW [Vol. 59:1]
non-discriminatory.
111
In these Circuits, laws alleged to burden ordinary commercial in-
terests are tested only by the most lenient form of judicial review: The rational-basis test.
112
b. No Discrimination Needed to Trigger Pike if Burden Exists on Interstate
Commerce
Other Circuit Court of Appeals have followed the traditional approach of
applying Pike v. Bruce Church balancing to even-handed regulations which, while not
imposing discriminatory effects on out-of-state commerce, still burden interstate com-
merce.
113
Thus, while the Fourth Circuit has expressed skepticism towards Pike balancing,
it refuses to adopt the discrimination/disparate impact framework adopted in other cir-
cuits.
114
The Sixth Circuit's approach is also faithful to the Supreme Court’s language.
115
The Eighth Circuit's approach to Pike claims also does not incorporate a threshold
discrimination/disparate impact requirement.
116
The Tenth Circuit has expressly rejected
and criticized the “discrimination” and “disparate impact” approach to Pike balancing.
117
111. See Park Pet Shop, Inc., 872 F.3d at 495. Unsurprisingly, this hyper-restrictive formulation of Pike has
been criticized within the Circuit. See id. at 504–05 (Hamilton, J., dissenting).
112. Monarch Beverage Co., Inc. v. Cook, 861 F.3d 678, 681 (7th Cir. 2017) (“Monarch’s equal-protection
challenge triggers only the most lenient form of judicial review: the law is valid unless it lacks a rational basis.”).
Under this familiar standard, a challenger must prove that the law is not rationally related to a legitimate govern-
ment interest. This is “a notoriously heavy legal lift,” id. (citation omitted), especially for litigants targeting eco-
nomic regulations, which enjoy a “strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
314-15 (1993). See also Saukstelis v. City of Chicago, 932 F.2d 1171, 1174 (7th Cir. 1991) (“Courts [properly]
bend over backward to explain why even the strangest rules are not that far gone.”) (emphasis in original). Thus,
it falls to the challenger to “negative every conceivable basis which might support [the law].” Ind. Petroleum
Marketers & Convenience Store Ass’n v. Cook, 808 F.3d 318, 322 (7th Cir. 2015).
113. See Pacific Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1014–15 (9th Cir. 1994) (explaining the
circuit split).
114. See Colon Health Ctrs. of America, LLC v. Hazel, 733 F.3d 535, 546–47 (4th Cir. 2013). Instead, the
Fourth Circuit applies the Pike test as this Court has explained it, closely scrutinizing the putative local benefits
and weighing them against the costs imposed upon interstate commerce. Indeed, the Fourth Circuit has twice
struck down regulations under Pike: in Yamaha Motor Corp., U.S.A. v. Jim's Motorcycle, Inc., the court struck
down a statute that allowed any existing franchised dealer in Virginia to protest the establishment of a new
dealership for the same brand anywhere in the state. 401 F.3d 560, 563, 574 (4th Cir. 2005). Although the law
applied equally to intrastate and interstate firms, the court held that the “the statute's burdens clearly exceed its
benefits.” Id. at 573. Similarly, in Medigen of Kentucky, Inc. v. Public Service Comm'n of W. Va., the court held
that the government's purported benefits were too speculative to survive a challenge under Pike. 985 F.2d 164,
165–67 (4th Cir. 1993).
115. See Eastern Kentucky Res. v. Fiscal Court of Magoffin Cty., Ky., 127 F.3d 532, 545 (6th Cir. 1997). In
Eastern Kentucky Res., the court upheld a regulation of solid waste management because “the Commonwealth's
clearly legitimate goals outweigh the burdens, if any, that are placed upon interstate commerce.” Id. The Sixth
Circuit has followed this straightforward approach to a claim that a regulation unconstitutionally burdened the
interstate scrap metal market, as well as to a statute preventing milk sellers from disclosing the absence of hor-
mones in their milk products. See also Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442 (6th Cir.
2009); Int'l Dairy Foods Ass'n v. Boggs, 622 F.3d 628 (6th Cir. 2010).
116. See U & I Sanitation v. City of Columbus, 205 F.3d 1063, 1070–72 (8th Cir. 2000); see also United Waste
Sys. of Iowa, Inc. v. Wilson, 189 F.3d 762, 768 (8th Cir. 1999) (noting that Pike balancing is “far more deferen-
tial to the states”). Yet, the court has also recognized that Pike is not toothless and has struck down a regulation
where the effects on interstate commerce were “far from trivial.” U & I Sanitation, 205 F.3d at 1072.
117. Dorrance v. McCarthy, 957 F.2d 761, 764 (10th Cir. 1992). In Dorrance, the defendants contended “that
when a statute regulates evenhandedly, the extent of the burden the statute imposes on interstate commerce is
irrelevant; the only inquiry is whether the statute imposes a different burden on interstate commerce than it does
on intrastate commerce.” Id. In holding that defendant's argument was “not only circular,” but that it “completely
misstate[d] the Pike analysis,” the Tenth Circuit expressly rejected the “differential impact” or “discrimination”
threshold of the Second, Third, Fifth, and Seventh Circuits. Id. The court concluded that “[b]y definition, a statute
that regulates evenhandedly does not impose a different burden on interstate commerce than it does on intrastate
commerce.” Id.
2024 DORMANT COMMERCE CLAUSE REVIEW 123
So, too, the Eleventh Circuit has declined to incorporate the discrimination/disparate
impact prerequisite into its analysis of Pike claims.
118
Regarding the other Circuit Courts of Appeals, the First Circuit applies Pike to non-
discriminatory burdens on interstate commerce, but has cited approvingly the Third Cir-
cuit's explanation that “the fact that a law may have ‘devastating economic consequences'
on a particular interstate firm is not sufficient to rise to a Commerce Clause burden.”
119
The Ninth Circuit has recognized the Circuit split on whether Pike claims require a thresh-
old showing of discrimination or disparate impact.
120
However, the Ninth Circuit has also
repeatedly declined to pick a side in the debate, instead focusing on discrimination in the
cases and thus avoiding the controversy.
121
The D.C. Circuit does not appear to have ruled
on a Pike claim in over thirty years.
122
IV. THE BEST APPROACH TO DORMANT COMMERCE CLAUSE
REVIEW
A. The Nature of Dormant Commerce Clause Review
The better analysis of the DCC cases is that in cases where Maine v. Taylor stand-
ard of review applies, the burden of proof shifts from the challenger in Pike v. Bruce
Church to the state under Maine v. Taylor, but otherwise the review is similar.
123
The
language in Supreme Court opinions concerning the “virtual per se rule of invalidity” in
cases that apply Taylor
124
would then reflect that when the state is engaged in such dis-
crimination against interstate commerce, the state’s interests would likely be sufficiently
weak and the burden on interstate commerce sufficiently great; meaning, it would be
almost inevitable that the burden on interstate commerce would be “clearly excessive,” a
118. See Diamond Waste, Inc. v. Monroe Cty., Ga., 939 F.3d 941, 944–45 (11th Cir. 1991). In Diamond Waste,
the court struck down a county ordinance because it “could have achieved its objectives as well with a lesser
impact on interstate activities.” Id. at 945. The Eleventh Circuit has also expressed concern over deferring to
local judgments in a proper Pike analysis. Florida Transp. Servs., Inc. v. Miami-Dade Cty., 703 F.3d 1230, 1261
(11th Cir. 2012). In a challenge to stevedore permits, the court held that “deference is not absolute,” and struck
down the scheme because although the benefits claimed were legitimate, the record AA shows no local benefit
rationally furthered by the permitting scheme. Id. at 1260–61. However, the court has also demonstrated that it
will uphold a statute or regulation where the burdens on interstate commerce are minimal. See Locke v.
Shore, 634 F.3d 1185, 1193–95 (11th Cir. 2011).
119. Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d 66, 84 (1st Cir. 2001) (citing Instructional
Sys., Inc., 35 F.3d at 827).
120. See Pacific Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1014–15 (9th Cir. 1994) (explaining the
circuit split).
121. See, e.g., Hass v. Or. State Bar, 883 F.2d 1453 (9th Cir. 1989); Kleenwell Biohazard Waste & Gen. Ecol-
ogy Consultants, Inc. v. Nelson, 48 F.3d 391, 399 (9th Cir. 1995); Am. Fuel & Petrochemical Mfrs. v.
O'Keeffe, 903 F.3d 903, 916 (9th Cir. 2018).
122. The last Pike case in the D.C. Circuit involved a challenge to the constitutionality of a District of Columbia
ordinance which banned the sale, use, or possession of “any device designed to detect or counteract” a police
radar. Electrolert Corp. v. Barry, 737 F.2d 110 (D.C. Cir. 1984). The court upheld the ordinance simply because
“the local government's safety rationale [wa]s not ‘illusory’ or ‘nonexistent.’” Id. at 113.
123. McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery, 226 F.3d 429, 443 (6th Cir. 2000) (citing Hunt,
432 U.S. at 353). That level adopts the same kind of reasonableness review balancing test as “second-order”
reasonableness review of Pike v. Bruce Church, but shifts the burden from the challenger to the state, as is true
of the Taylor test. This can be called “third-order” reasonableness review, which is a more vigorous kind of
scrutiny since the burden is now on the government to justify its action. On this point, see generally K
ELSO &
KELSO, supra note 19, § 7.2.1.
124. See, e.g.,,City of Phila. v. New Jersey, 437 U.S. 617, 623–24 (1978) (evaluating New Jersey law banning
importation of waste generated or collected outside of New Jersey).
124 TULSA LAW REVIEW [Vol. 59:1]
conclusion that could be reached without an extensive court analysis.
125
In reaching this
conclusion, the Court would apply not the strict scrutiny “least restrictive alternative”
analysis, but would merely consider less discriminatory alternatives in the context of
deciding whether the state’s statute represented a clearly excessive burden on interstate
commerce, as occurs under Pike v. Bruce Church analysis.
126
It is difficult to draw a line between a state law, even-handed on its face, which
has discriminatory effects on interstate commerce (to which the more stringent Maine v.
Taylor dormant commerce clause review currently applies), and a state law, even-handed
on its face with only incidental effects on interstate commerce (to which the Pike v. Bruce
Church test applies).
127
Given this difficulty, it would be somewhat anomalous for that
difficult line-drawing task to result in a shift from the “second-order” reasonableness
review of Pike to a strict scrutiny approach. Even under such reasonableness review, the
Court can easily hold that state laws that directly regulate interstate commerce, as by reg-
ulating transactions in other states, are invalid.
128
B. When to Apply Maine v. Taylor or Pike v. Bruce Church
i. Discriminatory Effects Doctrine
In the absence of facial discrimination or proving that the regulation was passed
with a discriminatory purpose, to which the heightened review standard of Maine v. Taylor
clearly applies,
129
deciding whether a particular regulation involves a discriminatory effect
on interstate commerce or merely an indirect burden on interstate commerce can be tricky.
For example, in Exxon Corp. v. Governor of Maryland, the Court considered a
regulation barring producers and refiners of petroleum products—all of which were
125. Classic cases of facial discrimination against interstate commerce being given summary review without
any extensive analysis include Wyoming v. Oklahoma, 502 U.S. 437, 440–41, 454–59 (1992) (Oklahoma legis-
lation required that Oklahoma coal-fired electric generating plants producing power for sale in Oklahoma must
burn a mixture of coal containing at least 10% Oklahoma-mined coal); Hughes v. Oklahoma, 441 U.S. 322, 336–
38 (1979) (Oklahoma state ban on export of minnows seized from state rivers); and City of Philadelphia v. New
Jersey, 437 U.S. 617, 623–29 (1978) (New Jersey attempting to keep waste from out-of-state sources, like Phil-
adelphia or New York City, from being dumped in New Jersey).
126. The source of some of the confusion may be C & A Carbone, Inc. v. Town of Clarkson, 511 U.S. 383,
392 (1994). There, the Court said, “[d]iscrimination against interstate commerce in favor of local businesses or
investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under
rigorous scrutiny, that it has no other means to advance a legitimate local interest. Id. (citing Maine v. Taylor,
477 U.S. 131 (1986) (upholding Maine’s ban on the import of baitfish because Maine had no other way to prevent
the spread of parasites and the adulteration of its native fish species). But Taylor did not necessarily involve a
“least restrictive alternative” approach, as the Court indicated only that a “State must make reasonable efforts to
avoid restraining the free flow of commerce across its borders . . . .” 477 U.S. at 147. Even in Carbone the Court
recognized that the town of “Clarkson has any number of nondiscriminatory alternatives for addressing the health
and environmental problems alleged to justify the ordinance in question. The most obvious would be uniform
safety regulations enacted without the object to discriminate.” Carbone, 511 U.S. at 393. Thus, Carbone was not
a case where despite using a very narrowly tailored approach the regulation was not the “least restrictive alterna-
tive.” It was a case where many less burdensome alternatives existed. This is similar to Pike v. Bruce Church
balancing.
127. Compare Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 137–39 (1978), with id. at 137–38
(Blackmun, J., concurring in part and dissenting in part).
128. Cf. Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986) (prohibiting
bar distillers from selling in New York at prices higher than the lowest price to be charged elsewhere, per a posted
price list for future sales); Healy v. Beer Institute, Inc., 491 U.S. 324 (1989) (finding local prices tied to the
lowest prices charged in other states had the illegitimate practical effect of controlling conduct beyond the state's
borders; also, the statute was discriminatory on its face because it applied only to brewers and shippers of beer
in interstate commerce and, thus, created a disincentive for companies doing business in the state to engage in
interstate commerce).
129. Maine v. Taylor, 477 U.S. 131, 138 (1986).
2024 DORMANT COMMERCE CLAUSE REVIEW 125
out-of-state business—from retailing gasoline in the state.
130
The Court concluded that the
Commerce Clause “protects the interstate market, not particular interstate firms, from pro-
hibitive or burdensome regulations,” and a nondiscriminatory regulation is not invalid
simply because it causes some businesses to shift from a predominantly out-of-state in-
dustry to a predominantly in-state industry if the regulation is based on sufficiently strong
legitimate interests.
131
As Justice Blackmun noted in his separate opinion, the Court could
easily have concluded the statute did create discriminatory effects, and thus could have
concluded that Maine v. Taylor should have applied.
132
The Court majority refused to do
so, rejecting Justice Blackmun’s argument that the burden should be on the State since the
case involved a discriminatory effect on interstate commerce.
133
A similar case is Minnesota v. Clover Leaf Creamery Co..
134
There, the Court
decided the validity of a Minnesota law that prohibited all milk retailers from selling their
products in plastic containers, without regarding whether the milk, the containers, or the
sellers are inside or outside the State.
135
The Court concluded the statute did not discrimi-
nate “bbetween interstate and intrastate commerce,” and thus applied Pike v. Bruce Church
review.
136
The Court acknowledged that the out-of-state plastics industry was burdened
relatively more heavily than Minnesotan industries, which could have been used to find a
discriminatory effect.
137
However, the Court concluded that this “incidental burden” was
“not ‘clearly excessive’ in light of the substantial state interest in promoting conservation
of energy and other natural resources and easing solid waste disposal problems.”
138
There
was also a possibility of finding a discriminatory purpose, which the Court majority
ignored.
139
Even if discriminatory effects can be established, determining whether that
effect is “powerful” or “mild”, as required by a Seventh Circuit case
140
is another level of
130. 437 U.S at 124–26.
131. Id. at 127–29.
132. In a separate opinion, Justice Blackmun noted that the burdens imposed by the statute on retail sales would
be born almost exclusively by out-of-state firms. As he stated:
Of the class of stations statutorily insulated from the competition of the out-of-state integrated firms,
then, more than 99% were operated by local business interests. Of the class of enterprises excluded
entirely from participation in the retail gasoline market, 95% were out-of-state firms, operating 98%
of the stations in the class.
Id. at 137–38 (Blackmun, J., concurring in part and dissenting in part).
133. Id. at 127–29 (Court majority applied the Pike v. Bruce Church balancing to uphold the state regulation);
id. at 138–45 (Blackmun, J., concurring in part and dissenting in part) (concluding that, because the case involved
a discriminatory effect on interstate commerce, the same kind of Pike balancing analysis should be applied, but
with the burden on the State, and thus that the regulation was invalid under Dormant Commerce Clause doctrine).
134. 449 U.S. 456 (1981).
135. Id. at 458.
136. Id. at 472.
137. Id. at 473 (“Even granting that the out-of-state plastics industry is burdened relatively more heavily than
the Minnesota pulpwood industry . . . .”).
138. Id. at 472–73.
139. In a separate opinion, Justice Powell noted that the Minnesota District Court had held “the actual purpose”
of the regulation was “to promote the economic interests of certain segments of the local diary and pulpwood
industry.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 475. The Minnesota Supreme Court had not
directly addressed this issue, and thus Justice Powell would have remanded the case to let them consider whether
this finding would suggest the higher Maine v. Taylor standard should apply based on “discriminatory purpose”
being found. Id. at 474–77 (Powell, J., concurring in part and dissenting in part). Justice Stevens also questioned
whether the majority should have reached the Dormant Commerce Clause issue at all. Id. at 486–89 (Stevens, J.,
dissenting). The majority responded that the Minnesota Supreme Court had accepted the proposition that the
“actual purpose” was the “articulated purpose” to promote energy conservation and ease solid waste disposal
problems. Id. at 462 & n.7.
140. See supra text accompanying notes 89–91.
126 TULSA LAW REVIEW [Vol. 59:1]
tricky, unpredictable decision-making. Reasoned decision-making suggests it would be
useful to avoid all these potentially unnecessary lines of inquiry.
141
Given these considerations, it would probably be best to clarify the standards for prov-
ing a discriminatory purpose versus an effect. Perhaps it would be useful to make the doc-
trine more similar to that under the Equal Protection Clause, where only a discriminatory
purpose triggers strict scrutiny, not mere discriminatory effects. In the Equal Protection
context, facial discrimination based upon race,
142
or a discriminatory intent to engage in
racial discrimination,
143
triggers a strict scrutiny approach. Mere discriminatory effects,
however, without a finding of discriminatory intent, do not trigger strict scrutiny.
144
It
would be somewhat anomalous for mere discriminatory effects to trigger strict scrutiny in
the dormant commerce clause context. But not in the context of racial discrimination, par-
ticularly given the difficult line to draw between a state law, even-handed on its face, which
has discriminatory effects on interstate commerce (to which the more stringent Maine v.
Taylor DCC review applies), and a state law, even-handed on its face with only incidental
effects on interstate commerce (to which the Pike v. Bruce Church test applies).
145
ii. Non-Discriminatory Effects, but Burdens on Interstate Commerce
As indicated in Part III.B.2.b, there is an issue among the Appellate Courts
whether Pike only applies when state statute has a disparate impact on interstate com-
merce— as the Second, Third, Fifth, and Seventh Circuits have held— or does it apply if
the law’s burdens on interstate commerce plainly outweigh its local benefits— as the
Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits have held.
146
This latter approach is
more consistent with Court opinions
147
and the purposes behind Dormant Commerce
Clause analysis to create an area of free trade among the states.
148
As the Tenth Circuit has noted, the language of Supreme Court opinions requires
courts to balance the costs of interstate commerce against the putative local benefits.
149
As
noted in Dorrance v. McCarthy, the defendants contended “that when a statute regulates
evenhandedly, the extent of the burden the statute imposes on interstate commerce is ir-
relevant. The only inquiry is whether the statute imposes a different burden on interstate
141. See, e.g., Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986)
(“[T]here is no clear line separating the category of regulation that is virtually per se invalid under the Commerce
Clause, and the category subject to the Pike v. Bruce Church balancing approach. In either situation the critical
consideration is the overall effect of the statute on both local and interstate activity.”); U & I Sanitation v. City
of Columbus, 205 F.3d 1063, 1068 (8th Cir. 2000) (“To be sure, the distinction between laws that overly
discriminate against interstate commerce and laws that place impermissible burdens upon interstate commerce is
an illusive one.”).
142. See generally K
ELSO & KELSO, supra note 19, at § 26.2.1.1 (“Facial Discrimination Cases”).
143. Id. at § 26.2.1.2 (“Non-Facial Race Discrimination: The Intent Requirement”).
144. Id. at § 26.2.1.2 & n.147 (discussing the factors relevant to make a prima facie case that race was a
motivating factor in the government’ decision, including “the impact or effect of the official action”; the “histor-
ical background of the decision, particularly if it reveals a series of official actions taken for invidious purposes”;
“legislative or administrative history”; and “any other evidence of discriminatory motive.”).
145. See generally Julian Cyril Zebot, Awakening a Sleeping Dog: An Examination of the Confusion in Ascer-
taining Purposeful Discrimination Against Interstate Commerce, 86 M
INN. L. REV. 1063, 1084–90 (2002) (dis-
cussing the related problem with determining discriminatory purpose in Dormant Commerce Clause cases, par-
ticularly in cases where they may be little evidence of discriminatory effects); Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456 (1981).
146. See supra text accompanying notes 100–08.
147. See supra note 91 and accompanying text.
148. As noted in Boston Stock Exchange v. State Tax Commission: “[W]e begin with the principle that '[t]he
very purpose of the Commerce Clause was to create an area of free trade among the several states . . . .” 429 U.S.
318, 328 (1977), citing Freeman v. Hewitt, 329 U.S. 249, 252 (1946).
149. Clover Leaf Creamery Co., 449 U.S. at 472.
2024 DORMANT COMMERCE CLAUSE REVIEW 127
commerce than it does on intrastate commerce.”
150
In holding that defendant's argument
was “not only circular,” but that it “completely misstate[d] the Pike analysis,” the Tenth
Circuit expressly rejected the “differential impact” or “discrimination” threshold of the
Second, Third, Fifth, and Seventh Circuits.
151
The court concluded that “[b]y definition, a
statute that regulates evenhandedly does not impose a different burden on interstate com-
merce than it does on intrastate commerce.”
152
And yet, Pike balancing still applies.
153
V. ADDITIONAL CONSIDERATIONS UNDER DORMANT COMMERCE
CLAUSE REVIEW
A. Is Economic Protectionism Ever a Legitimate Interest?
Where the state regulation has the purpose or primary effect to favor local eco-
nomic interests, it is likely to be viewed as invalid. This is true if the regulation discrimi-
nates against interstate commerce on its face,
154
or the purpose is to discriminate,
155
or
merely has discriminatory effects.
156
There is a question, however, whether economic
protectionism can ever be a legitimate interest to require at least a balancing of benefits
and burdens, particularly if the law regulates “even-handedly” in its operation.
Outside the DCC, in cases of economic regulation under the Due Process Clause
which triggers minimum rationality review, there is some support for concluding
economic protectionism can be a legitimate interest.
157
Other courts conclude economic
protectionism can never be a legitimate government interest.
158
For those Circuits that do
not apply Pike to nondiscriminatory burdens, and thus apply minimum rationality review,
there is some support for the view that economic protectionism for local interests is a
legitimate government interest.
159
In contrast, cases involving traditional DCC review do
not give simple economic protectionism much weight.
160
150. 957 F.2d 764 (10th Cir. 1992).
151. Id.
152. Id.
153. Id.
154. Philadelphia v. New Jersey, 437 U.S. 617 (1978) (barring import of waste to preserve local landfill space,
the Court noting that there was no other reason than their origin for treating them differently; the state was merely
trying to isolate itself from a problem shared by all); New England Power Co. v. New Hampshire, 455 U.S. 331
(1982) (barring export of electricity until local users were served); Wyoming v. Oklahoma, 502 U.S. 437 (1992)
(resident coal-fired electric generating plans serving Oklahoma customers were required to burn at least 10%
Oklahoma-mined coal).
155. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 352–54 (1977) (North Carolina had
a discriminatory purpose in barring state grade notices on imported apple containers where Washington had a
superior grading system).
156. See, e.g., Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440–41 (1978).
157. See, e.g., Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 286 (2d
Cir. 2015) (economic favoritism is
rational for purposes of our review of state action under the Fourteenth Amendment); Powers v. Harris, 379 F.3d
1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional provision or other federal law,
intrastate economic protectionism constitutes a legitimate state interest.”).
158. See, e.g., St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader
principles suggest that mere economic protectionism of a particular industry is a legitimate government
purpose.”); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008) (“[M]ere economic protectionism for
the sake of economic protectionism is irrational with respect to determining if a classification survives rational
basis review.”).
159. See, e.g., Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047, 1060 (7th Cir. 2018) (noting that favoring local
economic interests by passing a statute that “discriminates against long-distance commerce” does not raise due
process, equal protection, or dormant commerce clause problems as long as the statute “does not categorically
discriminate against out-of-state commerce.”).
160. See, e.g., Brown-Forman Distillers. Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986) (the
Court has “generally struck down the statute without further inquiry” when the statute either “directly regulates
128 TULSA LAW REVIEW [Vol. 59:1]
Under the intermediate review applicable to Art. IV, Section 2 Privileges and
Immunities Clause analysis,
161
there is at least some support that regulation to favor local
interests must be considered in the application of that doctrine. For example, writing for
the Court in United Building and Constr. Trades Council v. Camden,
162
Justice Rehnquist
considered whether the Clause was violated by a municipal ordinance which, as part of a
state-wide affirmative action program, required that at least forty percent of the employees
of contractors and subcontractors working on city construction projects be local residents.
Thus, the city had to show a substantial reason for the difference in treatment, and a trial
should be held on its claim that (1) persons who "live off" the city without living in it are
a source of the economic and social ills against which the ordinance was aimed and (2) the
law is closely related to that end.
163
To the extent cases like Maine v. Taylor are viewed as
a species of strict scrutiny,
164
it is unlikely that “simple economic protectionism” would
ever be viewed as a compelling government interest, thus supporting the “virtual[] per se”
rule of invalid sometimes attributed to those cases.
165
B. Can Pike v. Bruce Church Balancing be Done in a Principled Manner?
Concurring in Bendix Autolite Corp. v. Midwesco Enterprisers, Inc.,
166
Justice
Scalia said the Court should engage in DCC review only if a state statute is discriminatory,
and thus, the Taylor test applies, or creates an impermissible risk of inconsistent regulation
by more than one state, and thus, implied preemption principles would apply. Justice Scalia
charged that determining whether interstate commerce is excessively burdened by state
law, as called for by the Pike balancing test, is an inquiry ill-suited to the judicial function
because it is like asking whether a particular line is longer than a particular rock is heavy.
167
Justice Thomas has joined Justice Scalia in his criticism of Pike.
168
Chief Justice Rehnquist has not joined with this rejection of the Pike v. Bruce
Church test. However, his conservative preference for states’ rights
169
meant that he was
or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-
of-state interests.”).
161. See K
ELSO & KELSO, supra note 19, at § 20.3.3.2, at 892 nn.295-97.
162. 465 U.S. 208, 214–15 (1984). The Court first held that the Privileges and Immunities Clause applies to
city ordinances since cities are merely subdivisions of a state. Id. Second, the ordinance was not immune from
review simply because some in-state residents were disadvantaged. Id. This result is consistent with Dean Milk,
where the city of Madison’s discrimination against both out-of-city and out-of-state milk refineries raised prob-
lems under the Dormant Commerce Clause, discussed at K
ELSO & KELSO, supra note 19, at § 20.3.2.1.C, at 869
n.184. Third, the ordinance burdened the pursuit of a common calling, and that is a privilege sufficiently basic
for interstate harmony to fall within the clause. Camden, 465 U.S. at 219. Justice Blackmun, dissenting, said that
an extension of the clause to discrimination based on municipal residence has little practical justification and no
historical or textual support. New Jersey residents living outside Camden can protect themselves by state political
processes and this will further the interest of residents in other states. 465 U.S. at 223–35 (Blackmun, J., dissent-
ing). However, just as the Equal Protection Clause, see K
ELSO & KELSO, supra note 19, at § 26.1, at 1083 nn.1-
4, and the Dormant Commerce Clause, as in Dean Milk, see K
ELSO & KELSO, supra note 19, at § 20.3.2.1.C, at
869 n.184, apply to state and local action, so does the Privileges and Immunities Clause.
163. United Bldg. & Constr. Trade Couns., 465 U.S. at 222–23.
164. See supra text accompanying notes 61–64.
165. See supra text accompanying notes 50–55.
166. Bendix Autolite Corp. v. Midwesco Enterprisers, Inc., 486 U.S. 888, 898 (1988) (Scalia, J., concurring in
the judgment).
167. Id. at 897 (1988) (Scalia, J., concurring in the judgment) (“judging whether a particular line is longer than
a particular rock is heavy”). See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.
CHI. L. REV.
1175, 1182 (1989) (under balancing tests “predictability is destroyed; judicial arbitrariness is facilitated”).
168. See, e.g., West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 209 (1994) (Scalia, J., joined by Thomas, J.,
concurring in the judgment).
169. See K
ELSO & KELSO, supra note 19, at § 10.3.3, at 321 nn.68–73 (noting that in 10th and 11th Amendment
cases dealing with federalism issues Chief Justice Rehnquist was typically on the side of greater protection for
2024 DORMANT COMMERCE CLAUSE REVIEW 129
reluctant to invalidate state laws under DCC review. His reasoning techniques included
pushing for greater use of minimum rational basis scrutiny in cases of traditional local
concern, such as highway safety cases,
and overlooking an appearance of discrimination
if the state could have reached the same result by using nondiscriminatory means.
170
It
may be that similarly conservative Justices on the current Supreme Court may have similar
views either to those of Justice Scalia or Chief Justice Rehnquist.
171
To be precise, the proper issue is not whether the Court can engage in DCC
balancing, as phrased by Justice Scalia in Bendix,
172
but whether it is a useful enterprise.
The Court does cost/benefit balancing in lots of areas and finds it is workable in those
areas.
173
For example, we typically think a person behaves “reasonably” when the person
engages sensibly in a “cost-benefit” analysis. That is why the Court requires administrative
agencies to balance benefits against burdens in cases under the Administrative Procedures
Act.
174
Similarly, the Court balances benefits and burdens to determine under the BMW v.
Gore test whether a punitive damage award is “grossly excessive.”
175
Under Contract
Clause review for government action burdening the state’s own contract obligations, the
Court balances benefits and burdens to determine whether the government action is
“reasonable and necessary” under the U.S. Tr. v. New Jersey test.
176
A similar balancing
test is done under the Takings Clause for purposes of the Penn Central test.
177
The same balancing is done in other constitutional doctrines. That is why the
Court analyzes both benefits and burdens under the Procedural Due Process doctrine of
states’ rights). See generally Joshua R. Meddagh & John R. Theadore, Federalism Lost: The Roberts Court’s
Failure to Continue Rehnquist’s Federalism Revolution, 24 Digest, N
ATIONAL ITALIAN AMERICAN BAR
ASSOCIATION LAW JOURNAL 49 (2016).
170. See Kassel, 450 U.S. at 702–03 (Rehnquist, J., joined by Burger, C.J., and Stewart, J., dissenting) (pushing
for minimum rationality review); Bendix Autolite Corp. v. Midwesco Enterprisers, Inc., 486 U.S. 888, 898–900
(1988) (Rehnquist, C.J., dissenting). Ohio could have required Bendix to appoint an agent to receive process
before allowing it to install a furnace in Ohio; thus there was no discrimination against interstate commerce in
the case. Justice Scalia concurred in the result because the Ohio tolling statute, applying only to out-of-state
corporations, was discriminatory on its face and Ohio had not shown the absence of reasonable nondiscriminatory
alternatives, since the Ohio tolling statute applied even to corporations fully able to be sued in Ohio. Id. at 895–
98 (Scalia, J., concurring in the judgment).
171. See generally Frank B. Cross & Emerson H. Tiller, The Three Faces of Federalism: An Empirical Assess-
ment of Supreme Court Federalism Jurisprudence, 73 S.
CAL. L. REV. 741, 749 (2000) (noting that “States’ rights
has historically been regarding as a doctrine leading to conservative outcomes), citing Erwin Chemerinsky, Re-
habilitating Federalism, 92 M
ICH. L. REV. 1333, 1333 (1994) (“Historically, federalism has appeared in political
debate primarily as an argument to support conservative causes.”).
172. See supra note 168 and accompanying text.
173. See generally U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 (1977).
174. Under the Administrative Procedure Act, the Court has required administrative agencies explicitly to bal-
ance “costs” versus “benefits” in deciding whether to adopt regulations in order to satisfy their obligation to
engage in “reasoned decisionmaking.” Michigan v. EPA, 135 S. Ct, 2699, 2706–07 (2015) (unreasonable for
EPA not explicitly to consider “costs” before deciding “whether” regulation is “appropriate and necessary” under
the Clean Air Act); id. at 2714–15 (Kagan, J., joined by Ginsburg, Breyer & Sotomayor, JJ., dissenting) (taking
“costs” into account in deciding “how much to regulate” adequate without an independent explicit cost analysis).
175. Under BMW, the Court considers: (1) the degree of reprehensibility of the conduct; (2) the ratio between
the punitive damage award and the compensatory damage award; and (3) sanctions for comparable misconduct
in the law, to determine whether the challenger can show the punitive damage award is “grossly excessive. Id. at
559, 575–85 (1996).
176. Under U.S. Trust, the challenger has the burden of showing — given a three-part factor balancing of the
state’s “legitimate” interest; the statute’s means, including whether the benefits of the statute could be served
“equally well” by an “evident and more moderate course”; and the “burden” on individual contract rights — that
the burden was not “reasonable and necessary” given the statute’s benefit. U.S. Trust Co. of N.Y. v. New Jersey,
431 U.S. 1, 22, 31 (1977).
177. Under Penn Central, the Court balances the burden on the individual in terms of the economic impact of
the regulation, its interference with reasonable investment backed expectations, and whether it leaves the indi-
vidual with a reasonable rate of return on the investment against the benefits of the government action to deter-
mine whether the regulation is a “taking” as a too “sever[e]” burden on the individual. Penn Cent. Transp. Co. v.
City of New York, 438 U.S. 104, 124–25, 136–38 (1978).
130 TULSA LAW REVIEW [Vol. 59:1]
Mathews v. Eldridge.
178
The right of government workers to speak on matters of public
concern also involves a balancing test of benefits and burdens under the Pickering test.
179
A similar balancing takes places under the access to ballot/right to vote cases of Burdick
v. Takushi and Anderson v. Celebrezze.
180
Even the “reasonableness” test used by Chief
Justice Roberts in Morse v. Frederick involved considering whether the burden on free
speech rights was determined to be “reasonable” in light of the “important” benefit of
“educating students of the dangers of illegal drug use.”
181
In each of these cases, the Court balances the benefits of the government action
against the burdens to determine whether the government action is “reasonable” or “ex-
cessive.”
182
The Court has shown over the decades such balancing can be done. That is
part of the act of judging. Over time, the balance becomes more predictable as cases get
decided.
183
Thus, in deciding whether a state law is a “clearly excessive” burden under the
DCC Pike v. Bruce Church test,
184
that balancing can be done, as the Court has done for
decades.
A majority of the Supreme Court Justices appear to believe that after decades of
close judicial review, congressional silence manifests an intent that the Court's free trade
policy as implemented by DCC review should be maintained. Or they may believe that
without the Court's review of state commercial laws, Congress might overreact to state
laws that burden interstate commerce and thus produce negative results for state "sover-
eignty." Or they may be working from implications. Justice Kennedy said in Carbone v.
Clarkstown,
185
"[t]he Commerce Clause presumes a national market free from local legis-
lation that discriminates in favor of local interests." The Court has shown no interest to
reconsider its basic DCC jurisprudence.
186
The Court did recently reconsider one kind of
DCC case,
187
but that was in the context of applying standard DCC doctrine.
178. Under Mathews, the Court considers: (1) “the private interest” that will be burdened by the governmental
action; (2) the means by which existing procedures achieve the government’s ends, including “the risk of an
erroneous deprivation through present procedures and the probable value, if any, of additional or substitute pro-
cedures”; and (3) “the Government’s interest” or ends in the case. Mathews v. Eldridge, 424 U.S. 319, 334–35
(1976).
179. Under Pickering, the Court considers: (1) the government’s legitimate ends in “promoting the efficiency
of the public services it performs through its employees”; (2) prevails in a balance against “the interests of the
[employee]” in free speech; (3) including whether the government could act with more “narrowly drawn griev-
ance procedures.” Pickering v. Bd. of Educ. of Will County, Ill., 391 U.S. 563, 568, 572 n.4 (1968).
180. Under Burdick and Celebrezze, “the state’s important regulatory interests are generally sufficient to jus-
tify” reasonable, nondiscriminatory restrictions. [A court] must first consider the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindi-
cate. It then must identify and evaluate the precise interests put forward by the State as justifications for the
burden imposed by the rule. In passing judgment, the Court . . . also must consider the extent to which those
interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 433–34 (1992)
(quoting Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983).
181. Under Morse, the Court balanced the “burden” on free speech rights in light of the “important” benefit of
“educating students of the dangers of illegal drug use” to determine whether the principal’s action was “reason-
able.” Morse v. Frederick, 551 U.S. 393, 405–10 (2007).
182. See supra notes 175–83.
183. As another example, the theory of modern negligence law in torts is based on such a “cost-benefit”
analysis. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (“[I]f the probability be
called P; the injury L; and the burden B; liability depends on whether B is less than L multiplied by P.”).
184. Under Pike, the Court considers: (1) the state’s “legitimate local public interest”; (2) the means by which
the statute achieves these ends, including whether the benefits of the statute could be promoted “as well with a
lesser impact on interstate activities”; and (3) given this, whether the “burden” on inter- state commerce is
“clearly excessive” given the statute’s benefits. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
185. C & A Carbone v. Town of Clarkstown, 511 U.S. 383, 393 (1994).
186. South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171 (1999) (request not made until a brief
was filed on the merits); id. (O’Connor, J., concurring) (no reason given to reconsider or abandon the Court’s
well-established body of Commerce Clause jurisprudence).
187. In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the Court reaffirmed the rule from National Bellas
Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753 (1967), that under Dormant Commerce Clause
2024 DORMANT COMMERCE CLAUSE REVIEW 131
C. The Market Participant Doctrine
The Court has created an exception to DCC review under the “market participant”
exception. Beginning in 1976, in Hughes v. Alexandria Scrap Corp., the Court decided
that there is no DCC review at all if a state acts as a participant in the marketplace, rather
than as a regulator or taxing authority.
188
The analytic justification for this development
was that a state should be treated equally as a business when the state is running a busi-
ness.
189
Since private businesses can choose to discriminate against interstate commerce
in their choice of customers or choice of business partners, states should not be put at a
competitive disadvantage in such an enterprise.
190
The specific facts in Hughes v. Alexan-
dria Scrap involved the state of Maryland paying bounties for every Maryland-titled junk
car converted to scrap.
191
Maryland used higher document requirements for out-of-state
processors.
192
Rejecting a DCC challenge, Justice Powell wrote for the Court that the
state's action, as a market participant, was not the kind of action with which the Clause is
concerned.
193
The market participant theory was elaborated further in 1980 in Reeves, Inc. v.
Stake, where the Court held that South Dakota could prefer its residents in the sale of
cement from a state-owned cement plant.
194
For a five-four Court, Justice Blackmun said
that the framers did not intend to limit the ability of states to operate freely in the open
market.
195
Moreover, state proprietary activities often are burdened with the same re-
strictions imposed on private business.
196
A four-Justice dissent said the market participant
doctrine should be limited to procuring goods and services for government operations.
197
An outer limit to the market participant doctrine was noted in South Central Tim-
ber Development, Inc. v. Wunnicke.
198
In this case, the Justices most skeptical of the mar-
analysis a state cannot require a retailer having no physical presence in that state to collect and remit sales taxes
on the sales it makes. Id. Quill thus gave a real competitive advantage to Internet sellers, who were in their
infancy at the time. For example, Amazon started selling books in 1995. Makeda Easter & Paresh Dave, Remem-
ber When Amazon Only Sold Books?, LA.
TIMES (June 18, 2017, 12:40 PM), https://www.latimes.com/busi-
ness/la-fi-amazon-history-20170618-htmlstory.html. In Quill, Justices Scalia, Kennedy, and Thomas indicated
they ruled in Quill based on precedent, while noting that Congress could overturn National Bellas Hess by statute
at any time. 504 U.S. 319–20. Justice White dissented from the holding. Quill, 504 U.S. at 321. After Quill, states
and lower federal courts struggled with the competitive advantage given by Quill. Cf. Brohl v. Direct Marketing
Ass’n, 814 F.3d 1129 (10th Cir. 2016) (law requiring out-of-state retailers to report such sales to the state and
notify their customers of their obligation to pay state sales tax, including an “annual purchase summary” if the
customer bought more than $500 during the year, constitutional as not excessive burden under Pike v. Bruce
Church). More recently, Justices called for the Court to reexamine Quill. See District Marketing Ass’n v. Brohl,
135 S. Ct. 1124, 1135 (2015) (Kennedy, J., concurring) (“The legal system should find an appropriate case for
this Court to reexamine Quill . . . .”). In 2018, the Supreme Court overruled Quill in South Dakota v. Wayfair,
Inc., 138 S. Ct. 2080 (2018) (Roberts, C.J., joined by Breyer, Sotomayor & Kagan, JJ., dissenting based on
following Quill as precedent without regard to the fairness of the doctrine). This decision now permits states to
implement sales tax regimes for both in-state and out-of-state sales.
188. 426 U.S. 794, 806–10 (1976).
189. See id.
190. See Reeves, Inc. v. Stake, 447 U.S. 429, 437 (1980) (“There is no indication of a constitutional plan to
limit the ability of the States themselves to operate freely in the free market.”); id. at 439 (“Evenhandedness
suggests that, when acting as proprietors, States should similarly share existing freedoms from federal con-
straints, including the inherent limits of the Commerce Clause.”).
191. Hughes, 426 U.S. at 796–99.
192. Id. at 800–01.
193. Id. at 805–10.
194. 447 U.S. at 432–40 (1980); id. at 452–54 (Powell, J., dissenting).
195. Id. at 437.
196. Id. at 439.
197. Id. at 450–51 (Powell, J., dissenting).
198. 467 U.S. 82, 93–101 (1984) (plurality opinion).
132 TULSA LAW REVIEW [Vol. 59:1]
ket participant doctrine, Justices White, Brennan, Blackmun and Stevens (though not Jus-
tice Marshall who took no part in the decision of the case), joined in a plurality opinion,
which concluded: (1) Congress did not implicitly authorize Alaska to require that timber
taken from state lands and sold by the state be processed within the state prior to export;
(2) in making such a rule, Alaska was a regulator rather than a market participant; and (3)
the Commerce Clause barred the local-processing requirement.
199
Justice White distin-
guished Hughes on the ground that Alaska participated in the timber market, but imposed
conditions "downstream" in a different market—the timber-processing market.
200
Also,
while the state had a market participant interest as a private trader in the immediate sales
transaction, the antitrust laws place limits on vertical restraints, and downstream
restrictions have a greater regulatory effect than do limits on the immediate transaction.
201
In Wunnicke, Justices Powell and Chief Justice Burger agreed with the “regulator/market
participant” distinction, but would have remanded the case to the district court to apply
that test in the first instance.
202
Justices Rehnquist and O'Connor, dissenting, said Alaska
was only doing indirectly what it could do directly, i.e., selling only processed logs.
203
The Court has also had to consider whether to extend the market participant
exception to other constitutional doctrines, such as the Article IV, section 2 Privileges and
Immunities Clause, which the Court so far has declined to do.
204
The Court has also never
really considered that while private businesses have strong profit incentives not to engage
in discrimination against interstate commerce, except in unusual circumstances, and thus
court review of their activities is not particularly necessary, a state-run business entity does
not have the same kind of profit incentive.
205
Thus, a doctrine based on the equivalence
of state-run and private businesses may be a doctrine not based on adequate empirical
premises.
206
D. Dormant Commerce Clause is Mostly Statutory Interpretation, Not Constitutional Law
The question remains whether Justice Scalia is correct in his criticism of the Pike
balancing test. Would his view better contribute to constructive long-run systemic conse-
quences? One's answer may depend on evaluating cases that have invalidated state laws
by using Pike balancing and whether one believes those decisions have usefully promoted
free trade or it is more important for states to be free to experiment when Congress has
not acted.
Persons may disagree, but on balance the Nation's interests appear to have been
advanced by striking down state laws that are viewed as excessively burdening interstate
commerce. Certainly, the framers and ratifiers were concerned about state protectionist
199. Id. at 95–99; id. at 101 (noting that Justice Marshall took no part in the decision of this case).
200. Id. at 93–95.
201. Id. at 98–99.
202. Id. at 101 (Powell, J., concurring).
203. Id. at 101–03 (Rehnquist, J., dissenting). In another case to comment on the market participant doctrine,
the Court held in 1988 that an Ohio motor vehicle fuel sales tax, which gave a tax credit for the sale of ethanol
produced in Ohio, was regulatory rather than proprietary government activity, even though the purpose and effect
of the credit was to subsidize a local industry. New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 271, 277–
78 (1988). Therefore, the market participant doctrine did not apply to protect the tax from Commerce Clause
scrutiny. Id. at 278.
204. See United Bldg. & Const. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 219–21 (1984).
205. See Thomas K. Anson & P.M. Schenkkan, Federalism, the Dormant Commerce Clause, and State-Owned
Resources, 59 T
EX L. REV. 71, 89 n.90 (1980).
206. On the market participant doctrine generally, see Treg A. Julander, State Resident Preference Statutes and
the Market Participant Exception, 24 W
HITTIER L. REV. 541, 544–61 (2002); Anson & Schenkkan, supra note
207, at 88 (arguing that "the doctrine plainly needs development").
2024 DORMANT COMMERCE CLAUSE REVIEW 133
legislation.
207
It must be remembered that under the Articles of Confederation of 1783
there was no federal power to prevent protectionist legislation passed by various states
after the end of the Revolutionary War in 1783, when a deep recession in 1784-85, caused
in part by England closing markets and limiting importation of American goods into Eng-
land in retaliation for losing the Revolutionary War, prompted state protectionism in
response.
208
Such protectionist legislation, passed by states to protect their own state’s
commerce from competition, had the effect of retarding economic growth in the United
States generally.
209
Faced with this reality, a meeting in Annapolis, Maryland was called and held in
the summer of 1786, particularly to focus on the need to amend the Articles to deal with
this economic problem and provide for uniform rules regarding trade.
210
Although only
five States sent delegates—New York, New Jersey, Pennsylvania, Delaware, and
Virginia—the problems raised at that meeting convinced the participants, including James
Madison and Alexander Hamilton, to petition the states for a broader Constitutional
Convention the following year.
211
This led to the Constitutional Convention in 1787 in
Philadelphia, which framed the current United States Constitution.
212
Without Pike review, Congress would be forced to become more regularly
involved in reviewing state legislation that interfered with free trade. It has been noted that
there is some concern with institutional mechanisms and inertia of Congress under the
current DCC doctrine, where if Congress disagrees with the court balance, Congress must
pay legislation to reverse that decision.
213
How much greater is the concern if Congress
were to have to overcome legislative inertia in every case of the thousands of state
economic laws passed each year. Of course, whether the current doctrine is a good idea
depends upon whether the Court’s performance seems consistent enough with a back-
ground commitment to free trade or whether Congress would do a better job than the Court
in considering these issues.
214
It may be a justifiable system for Congress to rely on the state and federal courts,
with the Supreme Court power of review as the first line of defense against excessive state
207. See Mark R. Killenbeck, The Physics of Federalism, 51 U. KAN. L. REV. 1, 29 (2002) (quoting C & A
Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 (1994)).
208. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 623, 628–30 (1997) (Thomas,
J., dissenting).
209. See id. at 628 (noting that there were problems raised by the existence of interstate trade barriers).
210. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for
Proposing Amendments,” 65 F
LA. L. REV. 615, 671 (2013); Killenbeck, supra note 209, at 25–26 (quoting STATE
HIST. SOC’Y OF WIS., CONSTITUTIONAL DOCUMENTS AND RECORDS, 1776–1787, at 180 (Merrill Jensen ed.,
1976) (stating that the Annapolis Convention was “called to discuss the fact that a ‘uniform system in their
commercial regulations may be necessary to [the] common interest[s] and . . . permanent harmony’ of ‘the several
States.”).
211. Natelson, supra note 212, at 671–672, 674.
212. Id. at 673–674.
213. Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of
Federalism, 1987 D
UKE L.J. 569, 573 (1987) (“If the Court strikes down economic regulations, the states must
somehow force Congress to reverse the decision of the Court through legislation – a process made difficult be-
cause of Congress’ inherent political inertia.”).
214. For discussion of a view that Court review under the Dormant Commerce Clause is similar to court review
under the General Agreement on Tariffs and Trade (GATT) and both are useful doctrines to advance free trade,
see Daniel A. Farber & Robert E. Hudec, Free Trade and the Regulatory State: A GATT’s Eye View of the
Dormant Commerce Clause, 47 V
AND. L. REV. 1401, 1418–23, 1431–33, 1436, 1438 (1994); but see Redish &
Nugent, supra note 215, at 573 (arguing that “State power to regulate interstate commerce was designed to be
determined solely by the political judgment of Congress, where the states retain enough political power to block
congressional action, since Congress’ inertia is not against them.”). Given concern about state protectionist leg-
islation at the time of the founding, and early decisions, like Gibbons v. Odgen, considering whether to apply a
dormant commerce clause doctrine or ban state regulation on matters when Congress can regulate, such a view
of states’ right under the original Constitution design seem strained. See supra text accompanying notes 13–18.
134 TULSA LAW REVIEW [Vol. 59:1]
regulation of interstate commerce. The institutional mechanisms and inertia associated
with Congress are ill-suited to review thousands of state statutes that get passed each year
relating to commercial matters.
215
A more effective institutional response may well be the
current system where individual litigants, if burdened by a state law, choose to bring that
complaint to a court for initial review under the DCC.
216
If there was no such DCC review,
states might vigorously regulate commerce, and Congress either might not react at all or
might be goaded into a strong counter-reaction that could deprive the states of all inde-
pendence in the matter.
Congress, of course, can always overturn any court decision on DCC grounds if
it so wishes.
217
Thus, the doctrine is ultimately based not on the Constitution, but rather on
Court attempts to determine implied congressional intent where Congress has been
silent.
218
Indeed, Congress could direct the Court to stop engaging in DCC review,
219
or to
adopt Justice Scalia’s version of the DCC doctrine
220
if Congress so wished. Congress has
shown no interest to do either.
VI. C
ONCLUSION
As this article has indicated, there are three main issues for the Court to consider
regarding current DCC review. Issue one is whether to continue with Maine v. Taylor as a
215. This observation has certainly been true since the advent of modern economic regulation, and perhaps is
even more true today. See generally Sam Kalen, Dormancy Versus Innovation: A Next Generation Dormant
Commerce Clause, 65 O
KLA. L. REV. 381, 382 (2013) (“Today’s Congress lacks the congeniality that existed
fifty years ago, and any suggestion that its members can achieve consensus through rational, interest group plu-
ralism appears dominated instead by . . . partisan gridlock.”).
216. For the vast majority of state laws that do not burden individual business sufficiently to trigger a dormant
commerce clause lawsuit, the state law prevails under current doctrine. Thus, there is a preliminary sorting of
possible cases even before a court gets an opportunity to review some particularly burdensome state regulation.
217. See, e.g., Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 44 (1980) (Congress may confer “upon the States
an ability to restrict the flow of interstate commerce that they would not otherwise enjoy.”). See generally
C
HEMERINSKY, supra note 3, at 473 (“[S]tate laws burdening commerce are permissible, even when they other-
wise would violate the dormant commerce clause, if they have been approved by Congress.”). It should be noted
that the Court has stated that any such congressional intent must be expressed by Congress in a clear, unambig-
uous fashion. As stated in Maine v. Taylor, 477 US. 131, 139 (1986), “[a]n unambiguous indication of congres-
sional intent is required before a federal statute will be read to authorize otherwise invalid state legislation, re-
gardless of whether the purported authorization takes the form of a flat exemption from Commerce Clause
scrutiny or the less direct form of a reduction in the level of scrutiny.”
218. In his Treatise, Professor Chemerinsky phrases Congress’ ability to overrule any dormant commerce
clause cases as “this is one of the few areas where Congress has the clear authority to overrule a Supreme Court
decision interpreting the Constitution.” C
HEMERINSKY, supra note 3, at 474. Perhaps a better way to make the
same point is just to acknowledge that dormant commerce clause analysis, like whether some congressional
statute preempts a state law under preemption analysis, is not strictly speaking a constitutional doctrine, but rather
ultimately a matter of express or implied/dormant congressional intent. This is true even though one author has
argued that the Court should view dormant commerce clause doctrine not as implied congressional intent, but as
a categorical constitutional rule denying states ability to regulate, as under the Cooley approach that some things
are in their nature national. See Norman R. Williams, Why Congress May Not “Overrule” the Dormant Com-
merce Clause, 53 UCLA
L. REV. 153 (2005).
219. For example, Congress has done that in a particular area under the McCarran-Ferguson Act of 1945. Under
the Act, Congress has exempted from Dormant Commerce Clause review state regulation and taxing of the busi-
ness of insurance. See W. and S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 653 (1981). As
a separate exception where Congress can overrule any Dormant Commerce Clause decision, under Article I, §
10, cl. 3, with the consent of Congress, states can “enter into any Agreement or Compact with another State,”
even one that might involve burdening interstate commerce. U.S. C
ONST. art. I, § 10, cl. 3. The 1996 Northeast
Dairy Compact, which permits the six New England states power to regulate the price of milk, is a prime example.
See generally Redish & Nugent, supra note 215, at 589 (acknowledging the argument that “Congress’s failure to
overrule the Court’s Dormant Commerce Clause decisions can be viewed as manifesting Congress’s intention to
condone both the judicial exercise of the power and the propriety of the result.”).
220. See Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 898 (1988).
2024 DORMANT COMMERCE CLAUSE REVIEW 135
“third-order reasonableness balancing” test with “legitimate” interests being used to justify
state regulation, or to reformulate Maine v. Taylor as a strict scrutiny test, requiring “com-
pelling” government interests to regulate and the state having to use the “least burdensome
effective alternative.”
221
Issue two is whether to continue the current doctrine where facial
discrimination, discriminatory purposes, or discriminatory effects trigger Maine v. Taylor,
and only even-handed regulation that nonetheless has some burden on interstate commerce
triggers the Pike v. Bruce Church test, or whether to switch cases involving discriminatory
effects to apply only the Pike v. Bruce Church test.
222
Issue three is whether even-handed
regulations that place some burden on interstate commerce should continue to trigger Pike
v. Bruce Church or whether to abandon any Dormant Commerce Clause review in such
cases, as some lower federal Courts of Appeals have done.
223
The view of this article is that the Court should (1) clarify that Maine v. Taylor is
a “third-order reasonableness balancing” test, not strict scrutiny;
224
(2) that discriminatory
effects should only trigger the Pike v. Bruce Church test, leaving Maine v. Taylor only for
cases of facial discrimination or a discriminatory purpose;
225
and (3) the Court should con-
tinue to support using Pike v Bruce Church for cases of even-handed regulations that bur-
den both intrastate and interstate commerce equally, as well as extend Pike v. Bruce
Church to cases of discriminatory effects, as recommended for issue two above.
226
In National Pork Producers Council v. Ross,
227
a five-four Court upheld the power
of California to ban in-state sales of whole pork meat if it comes from breeding pigs confined
221. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 333–34, 342 (4th Cir. 2001) (characterizing
Maine v. Taylor as a “strict scrutiny” test and applying a “least discriminatory means” requirement).
222. See Park Pet Shop, Inc. v. City of Chicago, 872 F.3d 495, 502 (7th Cir. 2017).
223. Id. at 504.
224. See Maine v. Taylor, 477 U.S. at 147.
225. See generally Julian Cyril Zebot, Awakening a Sleeping Dog: An Examination of the Confusion in Ascer-
taining Purposeful Discrimination Against Interstate Commerce, 86 M
INN. L. REV. 1063, 1084–90 (2002) (dis-
cussing the related problem with determining discriminatory purpose in Dormant Commerce Clause cases, par-
ticularly in cases where they may be little evidence of discriminatory effects).
226. See Dorrance v. McCarthy, 957 F.2d 761, 764 (10th Cir. 1992). It should be noted that if recommendation (2)
is adopted, and only facial discrimination or discriminatory purpose trigger Maine v. Taylor, as is true for the analysis
of facial discrimination, discriminatory intent, and discriminatory effects under the Equal Protection Clause, see gen-
erally K
ELSO & KELSO, supra note 19, at § 26.2.1.1 (“Facial Discrimination Cases”), then the argument to reformulate
Maine v. Taylor as a strict scrutiny test under issue (1) becomes stronger, as facial discrimination or discriminatory
intent does trigger strict scrutiny for race, ethnic, or national origin discrimination under the Equal Protection Clause.
Id. On the other hand, the burden on interstate commerce from state legislation engaged in facial discrimination may
not be viewed as sufficiently troublesome from the Court’s perspective as burdening individuals based on race, eth-
nicity, or national origin, and so “third-order reasonableness balancing” may still be appropriate, similar to the way in
which the less than strict scrutiny standard of review of intermediate review is applied to cases of facial discrimination
or discriminatory purpose based on gender under the Equal Protection Clause. See generally K
ELSO & KELSO, supra
note 19, at § 26.3.1.2 (“Gender Discrimination Cases After 1970: Movement to Intermediate Review”).
My view is that facial discrimination against interstate commerce arising from state legislation is not as
troubling as race discrimination, but is a similarly troubling kind of action as government’s singling out individuals
for individualized special economic burdens under Dolan v. City of Tigard, 512 U.S. 374, 385–91 (1994), under Tak-
ings Clause analysis. That analysis is also a version of “third-order reasonableness balancing,” with the government
having the burden to demonstrate a legitimate “nexus” between its action and individual economic behavior and that
the government’s burden on individual economic behavior is not excessive, but “roughly proportional” to the problem
the government is facing in the economic marketplace. See generally K
ELSO & KELSO, supra note 19, at § 22.2.5.1,
at 975 nn.97–103 (“Standards of Review in Modern Takings Clause Cases”). On the specific issue of Dolan being a
“third-order reasonableness balancing” test, but regular Takings Clause review under Penn Cent.l Transp. Co. v. City
of New York, 438 U.S. 104, 124, 130–36 (1978), being a “second-order reasonableness” balancing test, similar to Pike
v. Bruce Church, see R. Randall Kelso, The Structure of Rational Basis and Reasonableness Review, 45 S
OUTHERN
ILL. U.L.J. 415, 460–63, 467–68 (2021). See also CHARLES D. KELSO & R. RANDALL KELSO, AMERICAN
CONSTITUTIONAL LAW: AN E-COURSEBOOK VOLUMES 1 & 2, at § 18.3.4, at 748 nn.57–58 (2014) (ebook) (available
at: http://libguides.stcl.edu/kelsomaterials). Thus, without regard to how issue two is resolved, my view is that under
issue one Maine v. Taylor should be viewed as a species of “third-order reasonableness balancing,” not “strict scrutiny”
review, as discussed in this article. See Maine, 477 U.S. at 147.
227. Nat’l Pork Producers Council v. Ross, 598 U.S. 356 (2023).
136 TULSA LAW REVIEW [Vol. 59:1]
in stalls so small they cannot lie down, stand up, or turn around. Because all parties stipulated
that the law did not involve discrimination against interstate commerce, the Maine v. Taylor
line of cases did not directly apply.
228
Nevertheless, a number of justices commented on the
relationship between Maine v. Taylor and Pike v. Bruce Church. Five justices specifically
noted that “‘no clear line’ separates the Pike line of cases from our core antidiscrimination
precedents.”
229
This is consistent with the view taken in this article that both Pike v. Bruce
Church and Maine v. Taylor are similar approaches with only the burden of persuasion shift-
ing from the challenger to the government in the Maine v. Taylor line of cases.
230
Six justices on the Court clearly indicated that Pike v. Bruce Church should continue
to be used for cases of even-handed regulations which nonetheless have a burden on interstate
commerce.
231
Their view that Pike balancing should be done in these kind of cases is also
consistent with the view taken in this article.
232
Three justices did adopt versions of DCC
doctrines consistent with the views of Justices Scalia and Thomas that, absent discrimination,
the Pike balancing is inappropriate for the Court to undertake.
233
While such a view is con-
sistent with some of the Court of Appeals cases discussed in this article,
234
that approach only
commanded three votes in National Pork— Justices Thomas, Gorsuch, and Barrett, in part.
235
On the third main issue discussed in this article, five justices noted that “the Pike line
serves as an important reminder that a law’s practical effects may also disclose the presence
of a discriminatory purpose.”
236
In her concurrence, Justice Sotomayor underscores the im-
portance of this point, saying, “Pike’s balancing and tailoring principles are most frequently
deployed to detect the presence or absence of latent economic protectionism.”
237
This lan-
guage suggests the Court may be willing to view cases not involving facial discrimination or
provable discriminatory purposes, but merely inferences from discriminatory effects, as
properly triggering only the Pike v. Bruce Church line of cases, as suggested in this article.
238
One final point about National Pork. The two justices essential to supporting the
result in the case, but not all of Justice Gorsuch’s reasoning, upheld the law on the grounds
that the Pike v. Bruce Church balancing test is only triggered for “substantial burdens” on
interstate commerce and the burden here was not substantial.
239
While such a requirement
228. Id. at 1153.
229. Id. at 1157, citing General Motors Corp. v. Tracy, 519 US. 278, 298 n.12 (1997).
230. See Maine, 477 U.S. at 148.
231. Nat’l Pork Producers Council, 598 U.S. at 390–93 (Sotomayor, J., joined by Kagan, J., concurring in part)
(no substantial burden in this case and thus no further Pike balancing need be done); id. at 393–95 (Roberts, C.J.,
joined by Alito, Kavanaugh & Jackson, JJ., concurring in part and dissenting in part) (petitioners “plausibly
alleged a substantial burden against interstate commerce” by the effect of this law on producer’s ability to sell in
the lucrative California market, and thus would remand the case to let the lower court do the Pike balancing test).
232. See generally Julian Cyril Zebot, Awakening a Sleeping Dog: An Examination of the Confusion in Ascer-
taining Purposeful Discrimination Against Interstate Commerce, 86 M
INN. L. REV. 1063, 1084–90 (2002) (dis-
cussing the related problem with determining discriminatory purpose in Dormant Commerce Clause cases, par-
ticularly in cases where they may be little evidence of discriminatory effects).
233. See, e.g., West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 209 (1994) (Scalia, J., joined by Thomas, J.,
concurring in the judgment).
234. See Monarch Beverage Co., Inc. v. Cook, 861 F.3d 678, 681 (7th Cir. 2017) (“Monarch’s equal-protection
challenge triggers only the most lenient form of judicial review: the law is valid unless it lacks a rational basis.”).
235. Nat’l Pork Producers Council, 598 U.S. at 380–90 (Gorsuch, J., joined unreservedly only by Thomas, J.,
announcing judgment of the Court) (adopting the position of Justice Scalia that a cost-benefit analysis for “clearly
excessive burdens” can never be done and is not a proper role for the courts); id. at 391–95 (Barrett, J., concurring
in part) (balancing could not be done in this case given the issue involved weighing a moral judgment about
eliminating allegedly inhumane products from the market versus cost of production.)
236. Id. at 376–77.
237. Id. at 391–93 (Sotomayor, J., joined by Kagan, J., concurring in part).
238. See generally Julian Cyril Zebot, Awakening a Sleeping Dog: An Examination of the Confusion in Ascer-
taining Purposeful Discrimination Against Interstate Commerce, 86 M
INN. L. REV. 1063, 1084-90 (2002) (dis-
cussing the related problem with determining discriminatory purpose in Dormant Commerce Clause cases, par-
ticularly in cases where they may be little evidence of discriminatory effects).
239. Nat’l Pork Producers Council, 598 U.S at 391–93 (Sotomayor, J., joined by Kagan, J., concurring in part).
2024 DORMANT COMMERCE CLAUSE REVIEW 137
of a “substantial burden” has never been part of the Pike test,
240
it is part of the modern
test under the Contract Clause.
241
In practice, this slight alteration of the Pike test may
make little difference, since if the burden is not “substantial,” the burden would only be
“clearly excessive,” in which the state’s interests were so small that the burden was
“clearly excessive” even though the burden was not “substantial.” This would be true only
in a very unusual case. Since the four justices dissenting in part concluded there was a
“substantial burden” on these facts,
242
they did not question that phrasing of the Pike test
in their opinion. Candor requires acknowledging that if adopted in the future it would be
a slight departure from the language of Pike and its progeny.
***
240. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (finding no requirement that the burden be
“substantial”, only that it be “clearly excessive” in relation to the benefit).
241. See Energy Rsrvs. Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–18 (1983) (only “substan-
tial” deprivations of contract rights trigger a Contract Clause analysis); City of El Paso v. Simmons, 379 U.S.
497, 503–04, 515 (1965) (same).
One can also note a similar substitution requiring a “substantial burden” in the Free Exercise Clause
doctrine. While the Court held in Sherbert v. Verner, 374 U.S. 398, 403 (1963), that “any burden” on free exercise
rights triggered strict scrutiny, later cases have interpreted that doctrine by saying strict scrutiny is only triggered
for “substantial burdens” on free exercise clause rights. See, e.g., Emp. Div. v. Smith, 494 U.S. 872, 894–95
(1990) (O’Connor, J., joined by Brennan & Marshall, JJ., and joined by Blackmun, J., as to Parts I and II, con-
curring in the judgment); Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1890 (2021) (Alito, J., joined by Thomas
& Gorsuch, JJ., concurring in the judgment) (both opinions phrasing Sherbert as requiring a “substantial burden”
to trigger strict scrutiny, despite that language not appearing in Sherbert). While the Sherbert line of cases was
overruled in Emp.t Div. v. Smith, 494 U.S. 872, 876–85 (1990), the “substantial burden” approach was picked up
and applied in statutes involving religious freedoms, like the Religious Freedom Restoration Act of 1993
(RFRA), codified in 42 U.S.C.A. §§ 2000bb–2000bb-4, and the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), codified in 42 U.S.C.A. §§ 2000cc–2000cc-5.
Such a “substantial burden” requirement creates a need to draw a line between “any” burden and a
“substantial burden.” In the religious context this has caused difficulties. To determine “substantial burden” under
RFRA, lower federal courts have tended to split between two tests: (1) does the burden have to involve a religious
exercise which is “compelled” by the religion or otherwise forces the individual to a “stark choice”; or (2) is it
enough if objection to following regulation is “religiously motivated” or otherwise “important” to religious prac-
tice. See, e.g., United States v. Sterling, 75 M.J. 407, 417–19 (U.S. Ct. App. Armed Forces 2016) (under either
approach no substantial burden to remove from desk sign stating, “no weapon formed against me shall prosper”;
option (1) above adopted by Third, Fourth, Ninth, and District of Columbia Circuits; option (2) adopted by First,
Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits), cert. denied, 137 S. Ct. 2212 (2017). A third
test, mentioned in passing in the Supreme Court case of Burwell v. Hobby Lobby, 573 U.S. 682, 724–727 (2014),
is (3) whether the plaintiff has a “sincere” and “honest” belief the burden is “substantial.” That language tracks
the usual phrasing in Free Exercise cases that free exercise doctrine in triggered by “sincerely held religious
beliefs.” See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1728 (2018). Although
the issues regarding burdens are different in the Dormant Commerce Clause context, a similar problem would
exist if a preliminary finding that the burden was “substantial” was necessary to trigger the Pike v. Bruce Church
test, rather than just doing a Pike balancing in every case of a burden, with an easy conclusion that the burden is
not “clearly excessive” If the burden is relatively small.
242. Nat’l Pork Producers Council
, 598 U.S. at 398–404 (Roberts, C.J., joined by Alito, Kavanaugh & Jackson,
JJ., concurring in part and dissenting in part).
