Dormant Commerce Clause
– the judiciary may strike down state and local laws that unduly interfere with interstate commerce
– even if Congress has not passed a law under its commerce power that preempts a state law that interferes with an explicit fed law the courts may still strike down that state law
What kinds of laws unduly interfere with Interstate Commerce?
1. Discriminatory –presumptively invalid under DCC- treats in-staters and out-of-staters differently
– facially explicit [NJ passed a law that would only let them take waste generated from NJ] – facially neutral (while neutral on its face, it has such a discriminatory effect on interstate
commerce it must be struck down)
2. Non-Discriminatory – all trucks that go thru Ill. need to have mud flap “A.” All other states only require mud
flap “B” – Balancing Test: Are the burdens on IC that the law poses greater then the benefits that
occur to the state?
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