Dormant Commerce Clause
92
MENTIONS
16
EPISODES
8
PODCASTS
Search complete. 92 mentions across 16 episodes found for "Dormant Commerce Clause".
Sep 27, 2026
Thomas HowardHOST
So day-to-day operational control has to be a Montana resident.
Thomas HowardHOST
And this is one of those things that came off of the Supreme Court petition last week that we were reporting on for seeing whether or not the Dormant Commerce Clause can reach into cannabis licensing.
Thomas HowardHOST
Some circuits throughout the United States say that, no, it cannot because it is illegal.
Thomas HowardHOST
And other states say that, yeah, yeah, they can.
WeedmanHOST
The Supreme Court has been asked to decide whether states can favor residents when awarding cannabis business licenses.
WeedmanHOST
Michigan operator Kenneth Gay says residency restrictions in Washington and Sacramento conflict with the Constitution's Dormant Commerce Clause.
WeedmanHOST
Lower federal courts have disagreed over how the rule applies to cannabis, creating a split and could eventually land before the justices.
WeedmanHOST
On federal rescheduling, medical marijuana has moved to Schedule 3 in April, while recreational marijuana remains a Schedule 1.
speaker_0GUEST
To protect patients by preserving fair competition, Arkansas enacted Act 624, which bars PBMs from owning pharmacies.
speaker_0GUEST
Plaintiffs argued, and the district court agreed, that Act 624 violates the Dormant Commerce Clause.
speaker_0GUEST
That was error.
speaker_0GUEST
Even assuming that plaintiffs count as out-of-state entities, Act 624 only differentiates between vertically integrated and non-vertically integrated pharmacies, and applies even-handedly regardless of in-state or out-of-state status.
speaker_0GUEST
Under Exxon and its progeny, that is entirely permissible.
speaker_0GUEST
At bottom, what plaintiffs are arguing is that states lack power to police anti-competitive and harmful practices when the perpetrators happen to be out-of-state entities.
speaker_0GUEST
The Dormant Commerce Clause and the Supreme Court's cases and this court's sister circuit's cases do not give them that get-out-of-jail-free card.
Leonard GraszPANELIST
Counsel, at what point does disfavoring vertical integration cross a line into discrimination against out-of-state economic interests?
speaker_5HOST
The structural bar is set incredibly high.
speaker_4HOST
Let's hit the very last piece of the federalism puzzle before we wrap up, the Dormant Commerce Clause.
speaker_5HOST
Right.
speaker_4HOST
We already talked about how Congress uses the active Commerce Clause to regulate the national economy.
speaker_5HOST
No, it does not.
speaker_5HOST
The Supreme Court has interpreted the Commerce Clause to have a negative or dormant implication.
speaker_5HOST
The Dormant Commerce Clause dictates that even when the federal government is silent, states cannot enact protectionist trade barriers that burden or discriminate against interstate commerce.
speaker_5HOST
The Framers created the Constitution largely to stop states from engaging in economic warfare with each other.
Thomas HowardHOST
They are petitioning to the Supreme Court for certiorari getting their legal opinion regarding a particular issue, which one of the things that they did in Illinois is they've adapted their there are cannabis laws so that we don't have a dormant commerce issue because like, you know, you own 51% and you live in Seattle.
Thomas HowardHOST
And so you're still social equity as well, unless for the money, then you're not social equity, which silly, but, um, uh, that is an issue of the dormant commerce clause with a split in the circuits.
Thomas HowardHOST
And so if anything is going to get taken up to the Supreme court, it would be this issue.
Thomas HowardHOST
Um, uh, I don't know how it's going to cause like the districts that say that it needs to comply with the dormant commerce clause.
Thomas HowardHOST
They always get rid of in-state restrictions.
Thomas HowardHOST
Like you can't just preference your own state and discriminate against out-of-state actors trying to engage in commerce in your state.
Miguel SantiagoHOST
sure
Thomas HowardHOST
now when they said that no you don't need to that's always because it's illegal right so that kids like does the Dormant Commerce Clause apply when it is illegal well interestingly enough the Dormant Commerce Clause the actual Commerce Clause applies for them to make it illegal as a commercial regulation and so that the schedule one is a commercial regulation in drugs you know effectively criminalizing them so if that regulation can be an exercise of the commerce power.
speaker_2HOST
It is also about what states cannot do because of the mere existence of federal power.
speaker_2HOST
This is one of the most intellectually fascinating areas of the law, the Dormant Commerce Clause.
speaker_3HOST
The Dormant Commerce Clause is the hidden negative space of the constitutional architecture.
speaker_3HOST
The text of the Constitution explicitly grants Congress the affirmative power to regulate interstate commerce, but the Supreme Court has inferred a negative corollary.
speaker_3HOST
Because the power over interstate commerce is given to the National Congress, the states are inherently stripped of the power to pass laws that improperly burden or discriminate against interstate commerce.
speaker_3HOST
The court views the United States as a single unified economic market.
speaker_3HOST
State protectionism, states treating each other like rival foreign nations, was one of the primary reasons the Articles of Confederation failed and the Constitution was drafted.
speaker_2HOST
So if a state passes an economic law and someone sues, arguing it violates the Dormant Commerce Clause, how does a judge evaluate it?
speaker_2HOST
It allows the supremacy of federal law to be vindicated through injunctions without raiding the state treasury for damages.
speaker_2HOST
Let's round out federalism with a doctrine that sounds like it's taking a nap but is constantly tested, the Dormant Commerce Clause.
speaker_1HOST
Ah, yes.
speaker_2HOST
We already established that Congress has the affirmative power to regulate interstate commerce.
speaker_2HOST
The entire purpose of the Constitution was to create a unified national market and prevent the states from engaging in economic warfare with each other.
speaker_1HOST
Right.
speaker_2HOST
How does a court analyze a Dormant Commerce Clause problem? It's a two-track analysis, right?
speaker_1HOST
Yes.
speaker_3HOST
You cannot use Ex Parte Young to raid the state treasury for retroactive damages to compensate you for past harms.
speaker_2HOST
Moving from immunity to the regulation of the national economy, we must analyze the Dormant Commerce Clause, or DCC.
speaker_2HOST
We know Article Y gives Congress the affirmative power to regulate interstate commerce.
speaker_3HOST
But the Supreme Court has long interpreted the Commerce Clause to contain an inferred negative dormant restriction on the states.
speaker_2HOST
Under Pike v. Bruce Church, the Court will uphold the evenhanded state law unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits.
speaker_3HOST
For example, if a state requires a specific, highly unique type of mudguard on all trucks driving on its highways for safety reasons, but this forces all interstate trucking companies to avoid the state entirely or spend millions retrofitting their fleets at the border, the Court will balance the minimal local safety benefit against the massive burden on the national trucking market.
speaker_2HOST
But the Dormant Commerce Clause has two massive exceptions that you must hunt for in a fact pattern.
speaker_2HOST
First, the market participant doctrine.
Richard EpsteinGUEST
The jurisprudence of the three dissenters, all of them, have this odd and, I think, indefensible view that there is something about the existence of federal power which is not subject to tradeoffs of one kind or another.
Richard EpsteinGUEST
So to give you one more example, there's something known as the Dormant Commerce Clause.
Richard EpsteinGUEST
Now, what it says is when you want to block goods from going through various situations as a state, what we do is we have some kind of a test to see whether you can or you can't do it by balancing the other inconvenience of the task as opposed to the safety objectives that are put forward.
Richard EpsteinGUEST
What happens is all three of these guys do not like those kinds of tests.
Benjamin JarosGUEST
But they're going to try and squeeze 183 days or a full year residence at the end of one day that doesn't pass.
Benjamin JarosGUEST
And so it's dormant commerce clause and other issues there, due process clause apply.
Benjamin JarosGUEST
The next issue is it has to do with California trying to tax assets that might not be in the state of California.
Benjamin JarosGUEST
They want worldwide assets.
6 more episodes mention Dormant Commerce Clause.
Create an account to see the whole feed, search across every transcript, and follow the entities you care about.