Copyright (c) 2003 Ave Maria School of Law
Ave Maria Law Review
NOTE: STATE BENEFITS UNDER THE PIKE BALANCING TEST OF THE DORMANT COMMERCE CLAUSE: PUTATIVE OR ACTUAL?
1 Ave Maria L. Rev. 175
James D. Fox +
This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down ... d'you really think you could stand upright in the winds that would blow then? 1
Introduction: Chaos is Better Than Randomness
Pike balancing 2 in dormant Commerce Clause jurisprudence may always be chaotic, but it need not suffer from its current randomness. By simply adapting rational basis scrutiny to its state benefits analysis, the Supreme Court could greatly clarify the Pike balancing test.
Under our federal system of government the states must legitimately be able to regulate health, safety, and the general welfare. Problems arise when the states either enact protectionist regulations that discriminate against the commerce of other states, or when legitimate non-discriminatory regulations interfere with the harmony of national commerce. The Supreme Court developed dormant Commerce Clause jurisprudence to prevent such problems. Protectionist regulations, also known as discriminatory regulations, are virtually always struck down. The value of non-discriminatory regulations, on the other hand, is weighed against the impact on interstate commerce. Cases evaluated under this balancing rule are known as Pike balancing cases. The jurisprudence in this area, though, is very murky. To see why requires an understanding of Pike jurisprudence as an analytical system; it is, however, difficult to come to such an understanding by merely reading the Pike cases or the literature on Pike. This is perhaps because the ostensibly simple Pike rule, that the burden on interstate commerce ...
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