Dormant commerce clause

The Commerce Clause contained in the U.S. Constitution grants Congress the “power ... [t]o regulate commerce with foreign nations, and among the several states.” Const. art. I, § 8, cl. 3. Implicit in this affirmative grant is the negative or “dormant” Commerce Clause &mdash; the principle that the states impermissibly intrude on this federal power when they enact laws that unduly burden interstate commerce. Analysis of a state law under the dormant Commerce Clause generally follows a two-step process. First, the court must determine whether the state law openly discriminates against interstate commerce in favor of intrastate economic interests. If the law is facially neutral, applying impartially to in-state and out-of-state businesses, the analysis moves to the second step, a balancing of the local benefits against the interstate burdens.