Expanded Concept of Facial Discrimination in the Dormant Commerce Clause Doctrine, The
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Authors
Day, David S.
Issue Date
2007
Volume
40
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|The dormant Commerce Clause doctrine is one of the main instruments in American Constitutional Federalism. Since at least 1970, the doctrine has been a two-tiered interpretative model. On the upper tier, the State regulatory schemes, which are considered "discriminatory," are evaluated at a very high level of scrutiny; some decisions, in fact, call this a "per se" level of scrutiny. On the second tier of this doctrine, State regulatory schemes, which are considered to be "nondiscriminatory," are evaluated under a standard less than strict scrutiny. The second tier standard is the "undue burden" standard, which is most frequently identified with the Pike v. Bruce Church, Inc. decision from 1970. While there are certainly doctrinal controversies about the exact level of scrutiny on the two tiers, there also does not appear to be any serious dispute that the undue burden standard is more than a rational basis standard...
Description
Citation
40 Creighton L. Rev. 497 (2006-2007)
Publisher
Creighton University School of Law