However, where a state statute exerts control over matters capable of being regulated by Congress under the Commerce Clause, those statutes are invalid because they conflict with a concept that is generally referred to as the “dormant Commerce Clause” (Dershowitz, 2002; Friedman, 2005). In modern application, federal courts apply a three-pronged test to determine whether or not a given state statute is invalid by virtue of a conflict with Congressional constitutional authority in relation to the exercise of the dormant Commerce Clause. In that regard, the first consideration is whether or not the statute is “even-handed” and only burdens interstate commerce “incidentally” and without discriminating against intestate commerce either on its face or in its effects. The second consideration is whether the statute furthers an objectively legitimate state purpose. The third consideration is whether any state statute that does further a legitimate state purpose does so in a manner that is more restrictive than necessary to achieve that purpose and (also) whether those same goals or purposes are capable of being achieved through less discriminatory means than those imposed by the statute at issue (Dershowitz, 2002; Friedman, 2005).
Analysis and Likely Outcome
Tanya will probably prevail in her challenge and succeed in overturning the Confusion State statute. The statute does not satisfy the applicable criteria used to determine its constitutional validity. First, the statute is not “even-handed” because it burdens interstate commerce substantially rather than only “incidentally.
” It also discriminates against intestate commerce, certainly in its effects even if not necessarily on its face, by (in effect) requiring all interstate trucks to avoid a direct route through Confusion or stop in Confusion to purchase a trailer hitch.
While it is possible that the statute furthers an objectively legitimate state purpose (such as where the B-type trailer hitch is safer than other types of hitches), it does not so in a manner that is no more restrictive than necessary to achieve that purpose. For example, those same state goals or purposes are fully capable of being achieved through less discriminatory means than those imposed by the Confusion state statute, such as by imposing objective standards for the quality and safety of trailer hitches that would enable the same goals to be satisfied by any trailer hitch satisfying those criteria (Dershowitz, 2002; Friedman, 2005). However, its likely that even that approach would fail to cure the problem with the statute unless the State of Confusion could establish to the satisfaction of the court that existing federal trailer hitch (and related) minimum safety requirements are inadequate to ensure the safety of intestate commerce (Friedman, 2005).
Dershowitz, a. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York:
Little Brown & Co.
Edwards, G., Wattenberg, M., and Lineberry, R. (2007). Government in America: People,