State Action and the Dormant Commerce Clause: Two Con Law Topics That Decide MBE Questions

Many Constitutional Law questions turn on a threshold issue that students skip. Two of the most important are state action and the dormant Commerce Clause.

State action

The rule: Most constitutional protections, including those in the Fourteenth Amendment, restrict government action, not private conduct. The Thirteenth Amendment, which prohibits slavery and involuntary servitude, is the main exception and applies to private conduct.

Private conduct can be treated as state action in two main situations:

Public function. A private party performs a function that has traditionally and exclusively been performed by the government, like running a company town or conducting elections. Running a utility, school, or nursing home generally doesn't qualify.

Significant state involvement (entanglement). The government has affirmatively authorized, encouraged, or facilitated the private conduct. Examples include judicial enforcement of racially restrictive covenants (Shelley v. Kraemer) and a joint enterprise where the government shares in the benefits of the private conduct. Mere licensing or regulation isn't enough, and neither is government funding alone.

Exam tip: If a private employer fires someone for their speech, the First Amendment usually isn't implicated. Look for state action before analyzing the right.

The dormant Commerce Clause

The rule: Because Congress has power over interstate commerce, states may not discriminate against or unduly burden interstate commerce, even when Congress hasn't acted.

Step 1: Does the law discriminate against out-of-state commerce? Discrimination can be on the law's face, in its purpose, or in its effect. A discriminatory law is invalid unless it's necessary to achieve an important non-economic state interest and there are no reasonable nondiscriminatory alternatives. Protecting local businesses from competition is never a sufficient interest.

Step 2: If the law is nondiscriminatory, does it unduly burden interstate commerce? Under Pike v. Bruce Church, a nondiscriminatory law is invalid if the burden on interstate commerce is clearly excessive in relation to the putative local benefits.

Exceptions:

• Market participant: when a state acts as a buyer or seller in the market, rather than a regulator, it may favor its own citizens.
• Congressional authorization: Congress can authorize state laws that would otherwise violate the dormant Commerce Clause.
• Traditional government functions: state laws favoring a government-owned facility performing a traditional public function (such as waste disposal) are treated more leniently.

A related clause: Article IV Privileges and Immunities

States generally can't discriminate against out-of-state citizens regarding fundamental rights like pursuing a livelihood, unless the discrimination is substantially justified. This clause protects only individual citizens, not corporations or noncitizens. On an exam, if a state law discriminates against out-of-state individuals in earning a living, analyze both clauses.

Where Lexora Prep fits

Threshold rules like these decide questions before the main analysis even begins. Lexora Prep is a Black Letter Law rule-training platform where you practice Constitutional Law rules from memory, including element identification and ordering modes for multi-step frameworks like the dormant Commerce Clause. Lexora tracks what you miss and brings those rules back for targeted review.

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About Lexora Prep

Lexora Prep is a Black Letter Law rule-training and essay practice platform for bar exam candidates. It gives you 700+ concise rules across 8 bar-tested subjects and trains recall through five modes: Typing, Fill Blank, Rule Elements, Ordering, and Flashcards. Lexora tracks the elements you miss, brings weak rules back for review, and organizes study around your weak areas, review history, and exam date. Essay Practice adds 120+ original essays you write in the platform, with detailed feedback on issue spotting, rule accuracy, application, conclusions, and organization.

Use it alongside your main bar course to make sure the rules you need come out complete and precise on exam day.

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Lexora Prep is a supplemental study tool, not a full bar review course, and it does not guarantee exam results. Lexora Prep is not affiliated with NCBE or any state board of bar examiners. Confirm exam formats, dates, and rules with NCBE and your jurisdiction.