Let Sleeping Dogs Lie: A Comparative Analysis of the Dormant Commerce Clause and Internal Trade Barrier Mitigation

Abstract: The Dormant Commerce Clause jurisprudence of the United States has been one of the most widely criticized doctrines of American constitutional law. However, most of these criticisms fail to consider the economic implications of the Dormant Commerce Clause, namely the benefits this doctrine has provided in facilitating internal free trade amongst the states. This Comment argues that the Dormant Commerce Clause has given American courts an effective tool to promote interstate free trade by removing state regulations that create non-tariff barriers to trade. To support this assertion, this Comment utilizes a comparative constitutional analysis to examine how the constitutional systems of the United States and Canada promote internal free trade. Under their constitutional system, Canadian courts have been unable to remove interprovincial barriers to trade, leading to billions in lost revenue and increased costs for businesses and consumers. In contrast, courts in the United States have been able to remove barriers to trade using the Dormant Commerce Clause, decreasing costs to consumers and businesses. Therefore, the Dormant Commerce Clause has allowed courts to establish more robust internal free trade. Thus, the Supreme Court of the United States must be wary of displacing the Dormant Commerce Clause from American constitutional jurisprudence because of its positive impact on interstate free trade.