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Author Topic: Main difference between COMMERCE CLAUSE AND DORMANT COMMER CLAUSE  (Read 5133 times)

JDwomen82

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Hi,

Can someone please tell me the main difference between the dormant commerce clause and the commerce clause? I know the cases and tests, but just want to know the difference between the two because sometimes i get them mixed up.

Any help would be great! Thanks in advance

bl825

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Re: Main difference between COMMERCE CLAUSE AND DORMANT COMMER CLAUSE
« Reply #1 on: May 03, 2009, 04:41:48 PM »
Commerce Clause: federal government can do something because it affects interstate commerce (e.g. regulate violence against women, I don't care what the case law says).

Dormant Commerce Clause: a state government can't do something because it tramples on federal government's power to regulate interstate commerce (e.g. you can't say that only locally produced milk can be sold in your supermarkets).

I think that's right.  People should feel free to step in and correct as necessary.
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JDwomen82

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Re: Main difference between COMMERCE CLAUSE AND DORMANT COMMER CLAUSE
« Reply #2 on: May 03, 2009, 04:44:46 PM »
So the CC deals with economic and noneconomic activity and the DCC deals only with economic activity?

Basically, federal law trumps state law?

bl825

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Re: Main difference between COMMERCE CLAUSE AND DORMANT COMMER CLAUSE
« Reply #3 on: May 03, 2009, 04:48:28 PM »
I don't remember if they make the economic/noneconomic distinction.  But yes to federal power trumping state power.
Oh yea...you're delicious and lean, but unsustainable and not to be consumed daily.

Ninja1

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Re: Main difference between COMMERCE CLAUSE AND DORMANT COMMER CLAUSE
« Reply #4 on: May 03, 2009, 06:35:52 PM »
Commerce Clause: federal government can do something because it affects interstate commerce (e.g. regulate violence against women, I don't care what the case law says).

Dormant Commerce Clause: a state government can't do something because it tramples on federal government's power to regulate interstate commerce (e.g. you can't say that only locally produced milk can be sold in your supermarkets).

I think that's right.  People should feel free to step in and correct as necessary.

I'm pretty sure this is right.
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rugercaptain

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CC-->In the text of the Constitution; express Congressional power to regulate commerce among the states.

DCC-->Not in text of Constitution; derived from Commerce Clause; does not directly involve Congress' authority to regulate commerce; is a power that the Court has read into the Commerce Clause to limit state and local governments from impeding interstate commerce.  It is "an implicit restraint on state authority, even in the absence of a conflicting federal statute."  United Haulers, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S.Ct. 1786 (2007).

So, there are two theories for justification of the DCC: 1) Because the Commerce Clause is an express grant of power to Congress, state action respecting interstate commerce is foreclosed; and 2) Congress, by its silence, preempts state legislation because the presumption is that "Congressional inaction was equivalent to a declaration that interstate commerce shall be free and untrammelled."  Welton v. Missouri, 91 U.S. 275 (1876).

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Diet Yomajesty

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Re: Main difference between COMMERCE CLAUSE AND DORMANT COMMER CLAUSE
« Reply #6 on: May 04, 2009, 11:03:34 PM »
So the CC deals with economic and noneconomic activity and the DCC deals only with economic activity?

Basically, federal law trumps state law?

This is practically all we talked about all semester. It was godawful, but I am at least now well-positioned to throw in some BS in an effort to help elucidate.

Federal law ALWAYS trumps state law, if they conflict. The source for this arrogance is the Supremacy Clause in Art. VI of the Constitution.

The CC allows Congress to regulate three areas of interstate commerce:
The channels of commerce (essentially commerce itself. Annoyingly circular, self-referential verbiage)
The instrumentalities of commerce (waterways, airfields, railroads, powerlines, etc.)
Activities which have a substantial impact on interstate commerce.

This last one is the most creative and is what Congress and the courts use to regulate non-economic activity. They use it as the source of their authority to enact laws like the Violence Against Women Act referenced above, asserting that domestic violence against women has a substantial impact on interstate commerce in that women who are victims of violence can't freely travel from state to state or some *&^%. It was mightily tenuous, and the Supreme Court said nice try but no dice.

Sometimes it works, though, like when a few people in California grew their own medical marijuana (legal to possess in CA). The feds arrested them, or destroyed their half-dozen plants - I forget - and the SC upheld the conviction under a federal law based on the commerce power. They held that this individual grower might not affect interstate commerce - indeed they weren't engaged in commerce AT ALL - but if you multiply this buyer by the zillions of others that would pop up if allowed, the market would be flooded with weed and interstate commerce would go berserk. Therefore, in the aggregate, this grower has a substantial affect on IC and can be regulated by Congress/federal law.

As for its Dormant retarded cousin, states are authorized to regulate commerce within their borders, but if they cross state lines and attempt to regulate INTERSTATE commerce, the feds get annoyed. There are lots of tests and variables to determine if a state law violates DCC, but in general, economic protectionism of a state's own citizens is almost always an invalid justification for discriminatory state laws (discriminatory against out-of-state commerce, that is, not protected classes of citizens).

I can go on, if this leaves you wanting more...
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