The Supreme Court Lends States a Break: Department of Revenue of Kentucky v. Davis and the Civic Responsibility Exception to the Negative Commerce Clause

Abstract

This case note will discuss the Court's adoption of the new civic responsibility exception to the negative Commerce Clause, with particular emphasis on the Court's analysis in reaching that conclusion, the Court's preference for federalism, its hesitance to apply the Pike balancing test, and its uncertainty with regard to the interplay between the market participant doctrine and the civic responsibility exception. Part II will explore the history of the negative Commerce Clause and trace the Court's development of the relevant tests which determine when the Clause has been violated. Part III will detail the facts of Department of Revenue of Kentucky v. Davis. Part IV will analyze all seven opinions, starting with the majority opinion by Justice Souter; concurrences by Justice Stevens, Chief Justice Roberts, Justice Scalia, and Justice Thomas; and finally dissents by Justices Kennedy and Alito.  Part V will explore both the legal and broader consequences of this decision. Finally, Part VI will conclude the case note.