The “Dormant” Commerce Clause, also known as the “Negative” Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause of the United States Constitution. The Commerce Clause expressly grants Congress the power to enact legislation that affects interstate commerce. The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce.

The restriction is self-executing and applies even in the absence of a conflicting federal statute. The premise of the doctrine is that the U.S. Constitution reserves for the United States Congress at least some degree of exclusive power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Article I, § 8). Therefore, individual states are limited in their ability to legislate on such matters.

The Dormant Commerce Clause does not expressly exist in the text of the United States Constitution. It is, rather, a doctrine deduced by the U.S. Supreme Court and lower courts from the actual Commerce Clause of the Constitution. Justice O'Connor has written that: The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent.

See The Federalist No. 22, pp. 143-145 (C.

Rossiter ed. 1961) (A. Hamilton); Madison, Vices of the Political System of the United States, in 2 Writings of James Madison 362-363 (G.

Hunt ed. 1901). The idea that regulation of interstate commerce may to some extent be an exclusive Federal power was discussed even before adoption of the Constitution, though the framers did not use the word "dormant." On September 15, 1787, the Framers of the Constitution in Philadelphia debated whether to guarantee states the ability to lay duties of tonnage without Congressional interference, in order for states to finance the clearing of harbors and the building of lighthouses.

James Madison believed that the mere existence of the Commerce Clause would otherwise bar states from imposing any duty of tonnage: "He was more and more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority." Roger Sherman disagreed: "The power of the United States to regulate trade being supreme can control interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction." Ultimately, the Constitutional Convention decided upon the present language in Article I, Section 10, which says: "No state shall, without the consent of Congress, lay any duty of tonnage...."

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