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Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning

Brannon P. Denning

This article argues that the historic incoherence of the dormant Commerce Clause doctrine reflects the Court's perpetual creation and discarding of decision rules designed to implement a constitutional command that had never been clarified. Drawing on the work of Mitch Berman and Kim Roosevelt, I articulate a constitutional command--prohibition of interstate commerce likely to destabilize political union--derived from the Constitution, then suggest decision rules that would implement that command. While some of my conclusions map onto current doctrine, I recommend that the Court abandon so-called "balancing" since it does not make sense as a decision rule, given the constitutional command …