Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

At times, the Supreme Court has taken a more lenient approach under the Dormant Commerce Clause toward local laws that relate to government actions it identifies as traditional government functions, and which “may be directed toward any number of legitimate goals unrelated to protectionism.” 1 In such cases, the Court has held that “a government function is not susceptible to standard Dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors.” 2

The Court has not identified an exhaustive list of traditional government functions or a test for identifying them, but one paradigmatic example is the govenrment’s role in waste collection. In United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Court upheld a law requiring trash haulers to bring waste to a processing plant owned by a state-created public benefit corporation. The Court explained that it would be “particularly hesitant to interfere . . . under the guise of the Commerce Clause” where a local government engaged in a traditional government function.3 United Haulers contrasted with earlier rulings that addressed garbarge transport and disposal laws without discussing whether those laws related to a traditional government function.4 For example, in C & A Carbone, Inc. v. Clarkstown,5 the Court invalidated a local “flow control” ordinance requiring that all solid waste within the town be processed at a designated transfer station before leaving the town. Underlying the restriction was the town’s desire to guarantee a minimum waste flow to the private contractor that constructed a solid waste transfer station. The Court declined to apply Carbone in United Haulers because the ordinance at issue in the latter case required haulers to bring waste to facilities owned and operated by a state-created public benefit corporation, as opposed to a private processing facility.6 The Court found this difference constitutionally significant because “[d]isposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.” 7

The Court has applied a traditional governmental function lens in other contexts. In Department of Revenue of Kentucky v. Davis, the Court upheld Kentucky’s exemption of interest on its municipal bonds from state income taxes while imposing income taxes on bond interest from other states, after concluding that the issuance of debt securities to pay for public projects is a “quintessentially public function.” 8 Curiously, the Court declined to apply the Pike v. Bruce Church, Inc. balancing analysis, holding that “the current record and scholarly material convince us that the Judicial Branch is not institutionally suited to draw reliable conclusions of the kind that would be necessary . . . to satisfy a Pike burden in this particular case.” 9

Footnotes

1

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 343 (2007).

2

Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 341 (2008).

3

550 U.S. at 344.

4

In Philadelphia v. New Jersey, the Supreme Court struck down a New Jersey statute that banned the importation of most solid or liquid wastes that originated outside the state. 437 U.S. at 629. Then, in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, 504 U.S. 353 (1992), the Court applied Philadelphia to hold unconstitutional a Michigan law prohibiting private landfill operators from accepting solid waste that originates outside the county where their facilities are located.

5

511 U.S. 383 (1994).

6

United Haulers, 550 U.S. at 334.

7

Id. The Court has applied United Haulers in other contexts. In Department of Revenue of Kentucky v. Davis, the Court upheld Kentucky’s exemption of interest on its municipal bonds from state income taxes while imposing income taxes on bond interest from other states, after concluding that the issuance of debt securities to pay for public projects is a “quintessentially public function.” 553 U.S. at 342. The Court declined to apply the Pike balancing analysis, however, holding that “the current record and scholarly material convince us that the Judicial Branch is not institutionally suited to draw reliable conclusions of the kind that would be necessary . . . to satisfy a Pike burden in this particular case.”

8

553 U.S. at 342.

9

Id. at 353.