The Fate of the Dormant Foreign Commerce Clause after Garamendi and Crosby

The dormant Foreign Commerce Clause applies a heightened degree of constitutional scrutiny to state laws that affect foreign commerce. However, the Supreme Court's recent decisions in American Insurance Ass'n v. Garamendi and Crosby v. National Foreign Trade Council have changed the way in which the Court scrutinizes laws that affect foreign affairs, showing a preference for conflict preemption to invalidate state laws over both the dormant foreign affairs power and the dormant Foreign Commerce Clause. This Note argues that the heightened scrutiny of the dormant Foreign Commerce Clause is better met by the preemption analysis in Garamendi and Crosby because as compared to preemption analysis the heightened scrutiny is redundant and less flexible. It argues that the justifications for the dormant Foreign Commerce Clause are different from the justifications for the dormant Interstate Commerce Clause and consequently courts should stop using the dormant Foreign Commerce Clause as a constitutional doctrine to invalidate state laws.