The “Commerce Clause” of the U.S. Constitution gives Congress authority to “regulate commerce . . . among the several states.” (Article I, Section 8). The primary purpose of the Commerce Clause is to prevent economic rivalry among the states and preserve harmony among them.
Interstate Commerce Clause
Over time, the Supreme Court has allowed Congress to use the Commerce Clause to regulate everything from transportation to manufacturing to air pollution, even when the regulated activity is done only in one state. The Court has stated it will likely uphold the regulation of intrastate activity if it is part of a class of activities which, collectively, substantially affect interstate commerce.
In rare cases, the Court has ruled that Congress may not use the Commerce Clause to regulate certain aspects of society, such as the possession of guns in school zones and the ability of victims of gender-motivated violence to sue. Even though the courts interpret Congress’s authority to regulate commerce very broadly, we challenge laws, policies, and regulations that exceed that authority.
Dormant Commerce Clause
The Supreme Court has also interpreted the Commerce Clause to contain a “dormant,” or implicit limitation on the ability of states to regulate commerce within their own jurisdiction. In other words, states may not promulgate laws, regulations, or policies that favor in-state businesses while disfavoring or placing an unfair burden on out-of-state businesses.
Specifically, states may not do the following under the Dormant Commerce Clause:
- States may not tax or regulate the operations or products of out-of-state companies more than those of in-state companies. For instance, the Supreme Court invalidated a a Missouri law that required only dealers of goods produced out of state to obtain and pay for a license.
- States may not give preference to local industry by providing special benefits for commerce produced within a state. For example, the Supreme Court invalidated a Hawaii law that provided tax exemptions for alcohol products manufactured locally.
- States may not promote disharmony or economic rivalry with other states. The Founders intended to create “an area of trade free from interference by the States” in which every producer and consumer has “free access to every market in the Nation.”
We challenge state laws, regulations, and policies that favor in-state interests and place an unfair burden on out-of-state businesses. We also provide advice to government entities that want to be sure not to violate the Commerce Clause.