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The Decline of the Dormant Commerce Clause

A profound transformation has been worked in the law of the dormant Commerce Clause. Much contemporary scholarship and many modern decisions of the Supreme Court present the essential structure and content of the doctrine in the form that it held through the middle decades of the 20th century (hereafter the “Traditional Framework”). But in truth the Court has dramatically eroded the dormant Commerce Clause since the mid-1980s, leaving it today a slender remnant of the traditional model. This article tracks three dimensions of the doctrine’s precipitous decline. First, the Court has profoundly eroded the rule against discriminatory regulation, focusing almost exclusively on “intentional” protectionism. Second, the Court has virtually retired the practice of burden review, in which the balance between the commercial burden of a State measure and its social benefits is judicially scrutinized for reasonableness. Third, the Court has created and expanded exceptions to the reach of the doctrine with remarkable speed. The first and second of these dimensions accord closely with prescriptions offered by Donald Regan in a seminal 1986 article, but the third dimension marks a decisive step beyond even Regan’s prophetic vision. Today, the path ahead remains unclear. Justice Scalia was a powerful and influential critic of the dormant Commerce Clause, and much may turn on whether his successor continues his project of opposition to the doctrine. But whatever happens next, the Traditional Framework is now hopelessly out of date, and the dormant Commerce Clause is in remarkable decline.