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70 U. Colo. L. Rev. 155 (1999)
Justice Thomas, the Import-Export Clause, and Camps Newfound/Owatonna v. Harrison

handle is hein.journals/ucollr70 and id is 177 raw text is: JUSTICE THOMAS, THE IMPORT-EXPORT CLAUSE, AND CAMPS NEWFOUND/OWATONNA V. HARRISON BRANNON P. DENNING* INTRODUCTION Pity the poor dormant Commerce Clause.' * LL.M. Candidate, Yale Law School. Research Associate & Senior Fellow, Yale Law School, 1997-1998; J.D., The University of Tennessee, Knoxville, 1995; B.A., The University of the South, 1992. Thanks to Boris I. Bittker, Dan T. Coenen, Nick McCall, and Glenn Reynolds for their comments and criticisms. Special thanks are also due my editor, Tom Snodgrass, who poked, prodded, and cajoled me to make changes that vastly improved the final product. This article arose out of my collaboration with Professor Boris 1. Bittker on a forthcoming treatise entitled Bittker on Interstate and Foreign Commerce. He both encouraged me to write this article, and allowed me to draw upon the research for the treatise to do so. This Article is dedicated to Professor Bittker with the deepest appreciation and admiration. 1. The term, first alluded to by Chief Justice John Marshall in Willson v. Black Bird Marsh Co., 27 U.S. (2 Pet.) 245, 252 (1829), refers not to a literal clause at all; rather it refers to the nontextual limitations implied by Congress's power to regulate commerce.., among the several states. See U.S. CONST. art. I, § 8, cl. 3. While the power to regulate commerce is exclusive once Congress acts, when Congress is silent states may regulate commerce, but there are limits to that power. Though many of the Court's previous tests have fallen by the wayside, modern dormant Commerce Clause cases are subjected to a two-tiered level of scrutiny: When a state statute discriminates directly against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry. When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, we have examined whether the State's interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits. Brown-Forman Distillers v. New York State Liquor Auth., 476 U.S. 573, 579 (1986) (citation omitted). Under the less stringent balancing approach: Where the statute regulates evenlandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact in interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citation omitted).

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