The Dormant Commerce Clause

American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm'n

The Commerce Clause of the Constitution is the clause that gives Congress the authority to pass legislation dealing with interstate commerce. In this case the American Trucking Association is objecting to a Michigan law which taxes each truck that engages in intrastate commerce a $100 tax to pay for regulating the size, weight, etc of trucks. The ATA argues that the law is unconstitutional because it fails a few tests that are used to invalidate laws which run counter to the freedom of commerce between the states, violating the "dormant commerce clause." The dormant commerce clause is the complimentary negative proposition to the stated commerce clause, and which prohibits “jeopardizing the welfare of the Nation as a whole” by “plac[ing] burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear.”

The Court uses a number of tests to determine whether the law violates the dormant commerce clause. First, it applies a facial test, which the law passes because it is applied evenly to all trucks engaged in intrastate commerce, and there is no indication that the law in fact affects interstate commerce. The Court then determines that the law does not discriminate against interstate truckers because the taxes are appropriately placed, nor would an alternate tax on miles traveled instead of a lump sum be more appropriate. The Court also addresses the "internal consistency" test, which considers the ramifications if every state were to adopt the same law. While conceding that if every state were to adopt the same law trucks would have to pay several hundred dollars, the Court recognizes that this would only be the case for states in which the trucks engage in intrastate commerce.

Justice Scalia, in an opinion concurring in judgment, argues that the use of these tests is unnecessary. Rather, he asks "whether the fee facially discriminates against interstate commerce" and "whether it is indistinguishable from a type of law previously held unconstitutional by this Court." Justice Thomas on the other hand, rejects the entire concept of the "dormant Commerce Clause."