The Commerce Clause: Volume 1

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss Commerce Clause doctrine. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * The Commerce Clause authorizes Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. CONST. art I, § 8, cl. 3. "Although the Constitution does not in terms limit the power of States to regulate commerce," the Supreme Court has "long interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute." Those implicit restraints apply to municipalities, too. See, e.g., C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). "[T]wo primary principles ... mark the boundaries of a [s]tate's authority to regulate interstate commerce": A state (1) "may not discriminate against interstate commerce" and (2) may not "impose undue burdens on interstate commerce." South Dakota v. Wayfair, Inc., ___ U.S. ___, 138 S. Ct. 2080, 2090, 201 L.Ed.2d 403 (2018). But those principles do not apply with equal force. If a law discriminates against interstate commerce, it is in big trouble because "[a] discriminatory law is virtually per se invalid." Dep't of Revenue v. Davis, 553 U.S. 328, 338, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008) (quotation omitted). It may be upheld "only if it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives." Ibid. (quotation omitted). If there are "any available alternative methods for enforcing [the government's] legitimate policy goals," the law is unconstitutional. Dickerson v. Bailey, 336 F.3d 388, 402 (5th Cir. 2003) (emphasis added). In contrast, if a law merely imposes an incidental burden on interstate commerce, it faces much smoother sailing. Under Pike v. Bruce Church, Inc., such a law will be upheld "unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits." United Haulers, 550 U.S. at 346, 127 S.Ct. 1786 (plurality opinion) (alteration adopted) (quoting Pike, 397 U.S. at 142, 90 S.Ct. 844). "State laws frequently survive this Pike scrutiny, though not always, as in Pike itself." Davis, 553 U.S. at 339, 128 S.Ct. 1801 (citations omitted). Hignell-Stark v. City of New Orleans, 46 F. 4th 317 (5th Cir. 2022)