The Market Participant Test in Dormant Commerce Clause Analysis—Protecting Protectionism?

The Supreme Court\u27s traditional analysis of state actions under the dormant commerce clause 1 has undergone two important modifications over the past decade. 2 In the first, the Court established a rule under which certain state actions that are within the scope of the dormant commerce clause may be deemed per se invalid, without inquiry into the extent to which the challenged state action burdens interstate commerce or furthers legitimate local objectives. 3 In the second, the Court fashioned a threshold inquiry to determine whether state action constitutes market participation, 4 in which case it lies outside the scope of commerce clause scrutiny even if it burdens interstate commerce. 5 Thus, the two developments place certain state actions beyond the traditional reach of the clause and cause others to be subjected to less scrutiny than provided for in traditional analysis. As a result of these two developments, certain state actions taking the form of market participation will be summarily upheld that would, in a different form, be summarily struck down as invalid per se. 6 The per se rule summarily invalidates state actions that enact trade barriers to interstate commerce. 7 Current analysis under the market participant test allows those obstructions that are classified as market participation to stand. 8 This note begins by describing the origin of this anomaly. 9 It then discusses the Supreme Court\u27s extension of the privileges and immunities clause to reach state actions that implement economic protectionism 10 but avoid commerce clause ..