The Commerce Clause provides that Congress shall have the power "to regulate Commerce with foreign Nations, and among the Several States. . . ." U.S. Const. Art. I, § 8 cl. 3. To that end, the "Necessary and Proper Clause grants Congress broad authority to enact federal legislation." United States v. Comstock, 560 U.S. 126, 133 (2010). It gives Congress the authority to "make all Laws which shall be necessary and proper" to "regulate Commerce . . . among the several States." U.S. Const., Art. I, § 8. Montgomery County Commission v. Federal Housing Finance Agency, (11th Cir. 2015).
The Supreme Court has identified three forms of regulation that are authorized by the Commerce Clause: (1) "Congress can regulate the channels of interstate commerce"; (2) "Congress has authority to regulate and protect the instrumentalities of interstate commerce"; and (3) "Congress has the power to regulate activities that substantially affect interstate commerce." Id. at 16-17, 125 S.Ct. 2195 (emphasis added). Moreover, "when Congress enacts a general statutory framework regulating economic activity, its power is not limited to the regulation only of interstate economic activity, but extends to the regulation of purely intrastate economic activity as well." Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 835 (4th Cir.1999) (en banc) (emphasis omitted), aff'd sub nom. United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Montgomery County v. Federal Nat. Mortg. Ass'n, 740 F. 3d 914 (4th Cir. 2014).
To implement the Constitution's objective of national economic unity, the Supreme Court "has consistently held that the Constitution's express grant to Congress of the power to 'regulate Commerce... among the several States,' Art. I, § 8, cl. 3, contains 'a further, negative command, known as the dormant Commerce Clause....'" Am. Trucking Ass'ns v. Mich. Pub. Serv. Comm'n, 545 U.S. 429, 433, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005) (quoting Okla. Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 179, 115 S.Ct 1331, 131 L.Ed.2d 261 (1995)). The dormant Commerce Clause promotes economic integration by "significantly limit[ing] the ability of States and localities to regulate or otherwise burden the flow of interstate commerce." McBurney v. Young, ___ U.S. ___, 133 S.Ct. 1709, 1719, 185 L.Ed.2d 758 (2013) (quoting Maine v. Taylor, 477 U.S. 131, 151, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986)). "It is driven by a concern about 'economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.'" McBurney, 133 S.Ct. at 1719 (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988)). Dissenting Opinion, Rocky Mountain Farmers Union v. Corey, 740 F. 3d 507 (9th Cir. 2014).
"The principal objects of dormant Commerce Clause scrutiny are statutes that discriminate against interstate commerce." CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 87, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987). "The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism," because these are the "laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent." C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). Thus, a corollary concern of the dormant Commerce Clause is that "this Nation is a common market in which state lines cannot be made barriers to the free flow of both raw materials and finished goods." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 803, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F. 3d 1144 (9th Cir. 2012).
Although dormant Commerce Clause jurisprudence protects against burdens on interstate commerce, it also respects federalism by protecting local autonomy. Davis, 553 U.S. at 338, 128 S.Ct. 1801. Thus, the Supreme Court has recognized that "under our constitutional scheme the States retain broad power to legislate protection for their citizens in matters of local concern such as public health" and has held that "not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States." Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 371, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976) (internal quotations and citations omitted); see also Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443-44, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960) (recognizing that the Constitution "never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country"); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535, 69 S.Ct. 657, 93 L.Ed. 865 (1949) (noting that the Supreme Court generally has supported the rights of states to "impose even burdensome regulations in the interest of local health and safety"). Nat'l Ass'n of Optometrists & Opticians v. Harris, ibid.
In a long line of dormant Commerce Clause cases, the Supreme Court has sought to reconcile these competing interests of local autonomy and burdens on interstate commerce. In one of those cases, Pike v. Bruce Church, Inc., the Supreme Court set forth the following summary of dormant Commerce Clause law, stating:
Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (citation omitted). Nat'l Ass'n of Optometrists & Opticians v. Harris, ibid.
THIS CASEBOOK contains a selection of 38 U. S. Court of Appeals decisions that analyze, interpret and apply Commerce Clause doctrine. The selection of decisions spans from 2011 to the date of publication.