Categories of Dormant Commerce Clause Cases

1) State or local laws that discriminate against out-of-state commerce which include both:
a) State or local laws that discriminate on their face against out-of-state commerce; and
b) State or local laws that have a discriminatory effect on out-of-state commerce. The strict test described below applies to this category.

2) State statutes that impose burdens on interstate commerce, but use means that do not discriminate against out-of-state commerce. The more deferential balancing test described below applies to this category.

Dormant Commerce Clause Standards

1) Strict Test: To be constitutional, a state or local law must advance a legitimate state or local interest and there must be no reasonable nondiscriminatory alternative means available to advance that interest. On numbers of occasions, the Court refers to this test as a "rule of virtual per se invalidity" because of how difficult it is to satisfy in the dormant Commerce Clause context. In general, state or local laws that are motivated by economic protectionism (a desire to protect local economic interests at the expense of out-of-state commerce), fail this test because economic protectionism is usually considered to be an illegitimate state interest under the dormant Commerce Clause.

2) More Deferential Test (Pike Balancing Test): To be constitutional, the burdens a state or local law imposes on out-of-state commerce must not be clearly excessive in comparison to the local benefits.