Vanderbilt Law Review, Vol. 50, No. 4 (May 1997), pp. 795-842


This Article considers the interplay of two central tenets of the U.S. Supreme Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator." The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."

Part II of this Article shows why these doctrinal pronouncements stand in an uneasy tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc., v. Department of Environmental Quality of Oregon, when two dissenters attacked the majority for overriding the market-participant exception by outlawing state discrimination in fixing public-landfill fees. Part III explains why the dissenters' reading of Oregon Waste Systems was misguided. Although that decision pointed up the long-latent strain between the Court's market-participation and user-fee cases, it did not resolve--in the public landfill context or otherwise--the ostensible contradiction created by these competing bodies of law.

Part IV explains how this doctrinal conflict could emerge. For years the Court has treated state tax cases and state regulation cases as falling into distinct analytical categories for dormant commerce clause purposes. Part IV shows how the creation of this doctrinal dichotomy may have led the Court to gloss over the intrinsic incompatibility of its broadly stated market-participant and user-fee rules.

Finally, Part V offers what the Supreme Court has not yet provided: a synthesis of these clashing principles that comports with both existing caselaw and sound dormant commerce clause policy.