Overview Edit

The Commerce Clause contained in the U.S. Constitution grants Congress the "power . . . [t]o regulate commerce with foreign nations, and among the several states." Const. art. I, § 8, cl. 3. The Commerce Clause is more than an affirmative grant of power to Congress. As long ago as 1824, Justice Johnson in his concurring opinion in Gibbons v. Ogden,[1] recognized that the Commerce Clause has a negative sweep as well. The clause, "'by its own force' prohibits certain state actions that interfere with interstate commerce."[2]

In what commentators have come to term its negative or "dormant" aspect, the Commerce Clause restricts the individual states' interference with the flow of interstate commerce in two ways. The Clause prohibits discrimination aimed directly at interstate commerce,[3] and bars state regulations that, although facially nondiscriminatory, unduly burden interstate commerce.[4]

Moreover, courts have long held that state regulation of those aspects of commerce that by their unique nature demand cohesive national treatment is offensive to the Commerce Clause.[5]

The courts have long recognized that railroads, trucks, and highways are themselves "instruments of commerce," because they serve as conduits for the transport of products and services. The Internet is more than a means of communications; it also serves as a conduit for transporting digitized goods, including software, data, music, graphics, and videos which can be downloaded from the provider's site to the Internet user's computer. . . .

The inescapable conclusion is that the Internet represents an instrument of interstate commerce, albeit an innovative one; the novelty of the technology should not obscure the fact that regulation of the Internet impels traditional Commerce Clause considerations.[6]

Courts use a two-step process in analyzing a state law under the dormant Commerce Clause. The first step is to determine whether the state law openly discriminates against interstate commerce in favor of intrastate commerce interests. If the law is facially neutral, applying impartially to in-state and out-of-state businesses, the analysis moves to the second step, a balancing of the local benefits against the interstate burdens.[7] If the law in question regulates evenhandedly among in-state and out-of-state interests, "and its effects on interstate commerce are only incidental, [the law] will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits."[8]


  1. 22 U.S. 1, 9 Wheat. 1, 231-32, 239 (1824) (full-text).
  2. Quill Corp. v. North Dakota By and Through Heitkamp, 504 U.S. 298, 309 (1992) (full-text) (quoting South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185 (1938)).
  3. See, e.g., Philadelphia v. New Jersey, 437 U.S. 617 (1978) (full-text).
  4. See, e.g., Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981) (full-text).
  5. See, e.g., Wabash, St. Louis & P. Ry. v. Illinois, 118 U.S. 557 (1886) (full-text) (holding railroad rates exempt from state regulation).
  6. American Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (full-text).
  7. State v. Henkel, 143 Wash.2d 824, 24 P.3d 404 (2001) (full-text) (en banc).
  8. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (full-text).

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