What does “dormant” mean in the Dormant Commerce Clause? | LegaMart

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QuestionApr 30, 2021 - 15:33

What does “dormant” mean in the Dormant Commerce Clause?

I'd like to develop some intuitive understanding of why Marshall used the word "dormant." I read the quotes of his decisions where he introduced the word, and I just don't get it. Here is a definition of the concept: The dormant commerce clause refers to a constitutional principle that is inferred from the commerce clause. The dormant commerce clause provides that the exclusive power granted to Congress through [the] commerce clause implies a negative consequence. The negative consequence is a restriction prohibiting a state from passing legislation that improperly discriminates against interstate commerce. Therefore, the dormant commerce clause limits the power [of] individual states to legislate on such matters. [The] Dormant commerce clause is not an express clause in the U.S. Constitution. It is, rather, a doctrine developed by the U.S. Supreme Court. The dormant clause doctrine is also known as the negative commerce clause.

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Dec 30, 2021 - 17:25

It is an implied power that restricts individual states from passing legislation that discriminates against other states in interstate commerce. For example, State A could not pass a law that only milk produced in its state and sold in its state is exempt from sales tax, whereas milk produced outside of State A but sold in State A would have sales tax. It is just a restraint on protectionism whereby one state's goods or services have lesser or preferential treatment than goods or services from another state. It keeps states on a level playing field to prevent unfair competition between the states.

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