The dormant Commerce Clause, also known as the negative Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power to regulate commerce among the several states. The idea behind the dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflict between state and federal statutes, but Congress may allow states to pass legislation that would otherwise be forbidden by the dormant Commerce Clause.[1] The premise of the doctrine is that the U.S. Constitution reserves for the United States Congress at least some degree of exclusive power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes (Article I, § 8). Therefore, individual states are limited in their ability to legislate on such matters. The dormant Commerce Clause does not expressly exist in the text of the United States Constitution. It is, rather, a doctrine deduced by the U.S. Supreme Court and lower courts from the actual Commerce Clause of the Constitution. Justice Kennedy has written that: The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent.[2]
Posted on: Sun, 23 Nov 2014 23:18:55 +0000
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