Article 1, Section 8, Clause 3 — Early Dormant Commerce Clause Jurisprudence

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Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

The Supreme Court first described the principles that would become the dormant Commerce Clause doctrine in 1824. In Gibbons v. Ogden, the Court struck down New York’s grant of a monopoly on steamboat traffic in New York waters.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn1art1 " 22 U.S. 1 (1824). ") The Court decided the case on Supremacy Clause grounds, ruling that the Federal Coastal Act of 1793 preempted the state law. Accordingly, the Court did not decide whether the Commerce Clause barred states from regulating interstate commerce. Chief Justice John Marshall recognized, however, the “great force” of Daniel Webster’s argument that the state law violated the Commerce Clause because that clause conferred upon Congress an exclusive power to regulate national commerce.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn2art1 " Id. at 209. ") In dicta, Chief Justice Marshall suggested that the power to regulate commerce between the states might be exclusively federal.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn3art1 " Id. at 17–18. ") At the same time, he also recognized that any national power to regulate commerce coexisted with state regulatory authority over matters that could affect commerce, such as laws governing inspection, quarantine, and health, as well as “laws for regulating the internal commerce of a State.” [4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn4art1 " Id. at 2. ")

Chief Justice Marshall again addressed the nascent Dormant Commerce Clause doctrine in Willson v. Black-Bird Creek Marsh Co.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn5art1 " 27 U.S. 245, 251 (1829). ") In that case, a sloop owner whose vessel ran into a dam across a navigable creek challenged a state law authorizing the construction of the dam, arguing that the law conflicted with the federal power to regulate interstate commerce. The Supreme Court rejected this argument, concluding that the state law could not “be considered as repugnant to the [federal] power to regulate commerce in its dormant state . . . .” [6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn6art1 " Id. at 252. ") The Court did not explain the basis for its holding, however, or attempt to square it with the ruling in Gibbons.

Over time, the Court came to add more nuance than was present in its earliest dicta. In Cooley v. Board of Wardens,[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn7art1 " 53 U.S. 299 (1851). ") the Court enunciated a doctrine of partial federal exclusivity that inquired into the subject of a regulation. The Court distinguished between subjects of interstate commerce that “imperatively demand a single uniform rule” nationwide, and subjects of commerce that do not demand such uniformity and which may require “that diversity, which alone can meet the local necessities.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn8art1 " Id. at 319. ") While the Court held that Congress’s power over the former category was exclusive, it also held that Congress and the states could concurrently regulate the latter category. Concluding that the regulation of pilotage was “incapable of uniformity throughout all the states,” the Court upheld a Pennsylvania state law that required ships to hire a local pilot when entering or leaving the Port of Philadelphia.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn9art1 " Id. at 306. ")

The Court first struck down a state law solely on Commerce Clause grounds more than two decades later. In the State Freight Tax Case, the Court held unconstitutional a statute that required every company transporting freight within the state, with certain exceptions, to pay a tax at specified rates on each ton of freight carried.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn10art1 " Case of the State Freight Tax, 82 U.S. 232 (1873). ") Two years later, in Welton v. Missouri,[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn11art1 " 91 U.S. 275 (1875). ") the Court held unconstitutional a state law that required a peddler’s license for merchants selling goods that came from other states. In doing so, it identified two separate goals that the dormant Commerce Clause might serve. First, it adopted Cooley's consideration of the goal of uniformity of commercial regulation. It then provided the additional justification that Congress had not enacted specific legislation governing interstate commerce, which was “equivalent to a declaration that inter-State commerce shall be free and untrammelled.” In other words, Congress’s silence on the subject was an indication that states could not regulate it.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn12art1 " Id. at 282. ")

Prior to 1945, the Court considered whether state regulations imposed unreasonable or undue burdens on interstate commerce, but did not generally weigh a regulation’s burdens against its benefits. Instead, the Court distinguished between instances where a state regulated interstate commerce and thus imposed a “direct” and impermissible burden on interstate commerce, and those where it imposed an “indirect” burden or merely “affected” interstate commerce, such as in the course of exercising its police powers.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn13art1 " E.g., The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 400 (1913) ( “The principle which determines this classification underlies the doctrine that the states cannot, under any guise, impose direct burdens upon interstate commerce. For this is but to hold that the states are not permitted directly to regulate or restrain that which, from its nature, should be under the control of the one authority, and be free from restriction, save as it is governed in the manner that the national legislature constitutionally ordains.” ); Hall v. DeCuir, 95 U.S. 485, 488 (1877). ") The Court indicated that “a state enactment [that] imposes a direct burden upon interstate commerce . . . must fall regardless of federal legislation,” indicating that such laws would be invalid even if they were not actually discriminatory.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn14art1 " The Minnesota Rate Cases, 230 U.S. at 396; see also W. Union Tel. Co. v. Kansas ex rel. Coleman, 216 U.S. 1, 37 (1910) (invalidating a Kansas state fee on Western Union for the benefit of in-state schools). ")

The distinction between direct and indirect burdens was not always clear, however.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn15art1 " See James M. McGoldrick, Jr., The Dormant Commerce Clause: The Origin Story and the “Considerable Uncertainties” —1824 to 1945, 52 Creighton L. Rev. 243, 276–284 (2019) (surveying the Court’s varying approaches to the direct/indirect test). ") Then-Justice (and later Chief Justice) Harlan Stone criticized the direct-or-indirect framework “too mechanical, too uncertain in its application, and too remote from actualities, to be of value,” and argued that the Court was “doing little more than using labels to describe a result rather than any trustworthy formula by which it is reached.” [16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn16art1 " Di Santo v. Pennsylvania, 273 U.S. 34, 44 (1927) (Stone, J., dissenting). ") The same Justice later articulated the modern balancing test for review of state regulations of or affecting interstate commerce.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn17art1 " S. Pac. Co. v. Arizona, 325 U.S. 761 (1945); . ")

Many early Dormant Commerce Clause cases addressed regulation of interstate transportation, including trains and motor vehicles. For example, in the Minnesota Rate Cases, the Supreme Court applied the direct/indirect burden test to invalidate Minnesota’s adoption of maximum charges for freight and passenger transportation.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn18art1 " 230 U.S. at 396–97. ") Other transportation-related cases did not yield a uniform application of the doctrine. In one case, the Court held that states could not set charges for the transportation of persons and freight because such regulation must be uniform.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn19art1 " Wabash, St. Louis & Pac. Ry. v. Illinois, 118 U.S. 557 (1886). After Wabash, the Court still upheld states’ authority to set rates for passengers and freight taken up and put down within their borders. R.R. Comm’n of Wis. v. Chi., Burlington & Quincy R.R., 257 U.S. 563 (1922). ") In another case, the Court struck down a Louisiana law requiring that all businesses engaged in interstate transportation of passengers provide equal treatment to all passengers regardless of race or color when transiting through Louisiana.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn20art1 " Hall v. DeCuir, 95 U.S. 485 (1877). Some scholars have drawn a connection between Hall v. DeCuir and the Court’s decision in Plessy v. Ferguson, 163 U.S. 537, to uphold the segregation of railroad accommodations under the Equal Protection Clause of the Fourteenth Amendment. Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1396 (1996). The Court later distinguished DeCuir from Plessy by explaining that, in the latter case, the state laws requiring segregated railway cars “applied only between places in the same state.” The Roanoke, 189 U.S. 185, 198 (1903). ") In other cases, the Court upheld a variety of state regulations of trains that had been justified on public safety grounds.[21](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/early-dormant-commerce-clause-jurisprudence#fn21art1 " E.g., Smith v. Alabama, <a href="/supremecourt/text/124/465" aria-label="