How to Get It Right on the MBE
The Commerce Clause frequently appears on the MBE and in essays. To answer these questions confidently, you must understand both the Commerce Clause and its counterpart, the Dormant Commerce Clause.
They test different principles and require different analytical frameworks.
The Commerce Clause: Federal Power
The Commerce Clause gives Congress the power to regulate commerce among the states.
When you see a question involving a federal statute, ask whether Congress had authority to enact it. Congress may regulate:
- Channels of interstate commerce
- Instrumentalities of interstate commerce
- Activities that substantially affect interstate commerce
Modern exam questions often focus on whether an activity, taken alone or in the aggregate, has a substantial economic effect on interstate commerce.
Your task is to identify the category and apply the correct level of scrutiny to Congress’s power.
The Dormant Commerce Clause: Limits on States
The Dormant Commerce Clause is not written in the Constitution. Instead, it is inferred from the Commerce Clause and limits state laws that interfere with interstate commerce.
When you see a state law affecting out-of-state businesses or economic activity, shift your analysis.
Ask:
- Does the state law discriminate against interstate commerce?
- If so, is it necessary to achieve an important government interest?
If the law is discriminatory, it is usually invalid unless the state can meet a very high burden.
If the law is neutral but burdens interstate commerce, courts apply a balancing test. The law will be upheld unless the burden on interstate commerce clearly outweighs the local benefits.
How to Keep Them Straight
If Congress is acting, think Commerce Clause and focus on federal power.
If a state is acting and interstate commerce is affected, think Dormant Commerce Clause and focus on limits on state authority.
On the exam, success comes from identifying who is regulating and applying the correct framework quickly and methodically.
The Bottom Line
The Commerce Clause expands federal authority. The Dormant Commerce Clause restricts certain state actions.
Mastering the distinction and the analytical steps for each will help you approach Con Law questions with clarity and confidence.
Prepare with BARBRI Bar Review to fully understand the Commerce Clause, the Dormant Commerce Clause, and other frequently tested constitutional principles, so you can apply the correct framework quickly and confidently on exam day.
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