How should one undertake an ANALYSIS of a law under the DORMANT COMMERCE CLAUSE and the PRIVILEGES & IMMUNITIES CLAUSE?
FIRST: "Does the state law discriminate against out-of-staters?"
- IF NO
- 1. PRIVILEGES & IMMUNITIES CLAUSE does NOT apply because there is NO DISCRIMINATION.
2. If the law BURDENS interstate commerce: it violates the DORMANT COMMERCE CLAUSE if its BURDEN on interstate commerce OUTWEIGHS the BENEFITS of the law.
- IF YES
- 1. If the law BURDENS interstate commerce: it violates the DORMANT COMMERCE CLAUSE UNLESS it is NECESSARY to achieve an important government purpose and government must show that NO LESS DISCRIMINATING ALTERNATIVE can achieve its goal.
- - EXCEPTIONS: (a) Congressional approval; or (b) Market Participant Exception.
2. If the law discriminates against out-of-staters with regard to their ability to earn a living (ECONOMIC ACTIVITY): it violates the PRIVILEGES & IMMUNITIES CLAUSE of Article VI unless it is NECESSARY to achieve an important government purpose.