Dormant commerce clause The DCC prevents states from unreasonably interfering with or discriminating against interstate commerce.

This can occur when states grant preferential treatment to their instate businesses or states discriminating against out of state businesses. Congress has the absolute power to regulate interstate commerce but if congress chooses not to exercise this power the dormant or negative commerce power may still prevent states from regulating interstate commerce. First you need to decide whether the state is discriminating against out of state interests or whether the out of state and instate interests are being treated the same. If the law on its face discriminates or has the purpose or effect of discriminating a nearly per se rule of invalidity applies. If a state law does not facially discriminate or only incidentally burdens out of state commerce court employs a balancing test. Maine v. Taylor Maine prohibited importation of baitfish from other states. The statute clearly discriminated against out of state baitfish but for a legitimate purpose protecting the states aquatic ecology. The court applied strict scrutiny and found the van served a legitimate local purpose that could not be adequately served by available nondiscriminatory alternatives. Court accepts this as the least instructive means in order to protect their ecology. This was the only case to win under strict scrutiny test Minnesota v. Clover Leaf Creamy State of Minnesota prohibited milk in plastic containers in order to promote recyclable materials and efficient use of landfills. Court says the state has a valid interest in energy conservation and environment and not much of an impact on interstate activities. Court applied Pike Balancing test and the burden was not clearly excessive because if states substantial interests. No alternative with lesser impact in IC available to achieve states energy conservation and recycling objectives.

Philadelphia v. NJ NJ passed law-preventing waste from other states to be dumped in their landfills because they were running out of room. States cannot pursue legitimate interest by slowing the flow of all waste in state landfills but states cannot do this by discriminating against out of state articles of commerce. Court viewed this as a protectionist measure and applied to per se test. The motive of the state was improper because they were

just trying to horde their own landfills and this was not a valid or legitimate local concern that outweighed the burden on commerce and discriminatory effect. What about the ROMB? Dean Milk v. Madison City ordinance prohibiting the sale of milk not processed at approved plants within five miles of Madison. To protect the health and safety of its citizens because its standards are higher than those of Dean and others produced out of state. The court invalidated the ordinance because there were other reasonable alternatives available that were not nondiscriminatory. If the ordinance had been upheld this would have been a risk of multiple burdens as well as restrictive to the purpose of commerce clause. Pike v. Bruce Church Arizona required all growers of canaloupe to package them at Arizona packers and bear the Arizona name. The state interest did not outweigh the burden on commerce. Even if there is a legitimate local interest, this sort of burden has been declared to be virtually per se invalid.