The Dormant Commerce Clause's Unfulfilled Constitutional Promise to Rule Out Protectionism: Proposal for a New Doctrine


  • Csongor István Nagy



The federal market is a cornerstone of every federal polity. It would be difficult to imagine American federalism without the internal free trade constitutionalized by the Dormant Commerce Clause (DCC). This Article provides a criticism of the Supreme Court’s DCC case law and proposes a new approach that takes economic reality into account.

The Article demonstrates that the Supreme Court’s DCC case law, owing to its countenancing unnecessary restrictions of trade, fails to fulfill the constitutional function one may attribute to a federal market. First, it seems the Supreme Court replaced the inquiry that fits the Constitution with one that it felt comfortable with. Although the case law promises to suppress state protectionism, in fact, it deals merely with naked protectionism and, thus, gives states a very wide playing field to shelter local economic interests. Second, the Supreme Court’s case law is inconsistent in the sense that it does not do what it promises to do. The Court promises to suppress state protectionism but, instead, it invalidates only those measures that are outrageously protectionist; it examines existential necessity but ignores the question of extensional necessity. Furthermore, it promises a two-step analysis that distinguishes between the restriction of trade and its justification, but the analysis usually does not get to the second step, since only those measures are pronounced restrictive in the first place that could not be sufficiently justified in the second place.

The paper proposes a substantive sliding-scale approach that takes economic reality into account. This implies that the current two-limb test should be replaced with a three-limb test providing for an increasingly closer scrutiny of symmetric, asymmetric, and discriminatory impact. It demonstrates that theidea of suppressing state protectionism implies two requirements of necessity. The first one, labeled by this Article as “existential necessity,” requires that completely unnecessary restriction of trade be ruled out. The second one, baptized as “extensional necessity,” filters out restrictions that go beyond what is necessary and turns on the existence of less restrictive regulatory alternatives. This calls for the comparison of policy options in terms of trade restrictiveness and effectiveness but involves no genuine value choice. The proposed doctrine’s novelty lies in the introduction of extensional necessity, which is patently overlooked in the Supreme Court’s current case law.