Gaphs having to do with commerce clause

Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Even as the Commerce Clause empowers Congress to pass federal laws, it has also come to limit state authority to regulate commerce. In contrast to the doctrine of preemption, which generally applies in areas where Congress has acted,1 Footnote
See ArtVI.C2.3.3 The New Deal and the Presumption Against Preemption. the so-called “dormant” Commerce Clause may bar state or local regulations even where there is no relevant congressional legislation. Although the Commerce Clause “is framed as a positive grant of power to Congress” and not an explicit limit on states’ authority,2 Footnote
Comptroller of Treasury of Md. v. Wynne , 575 U.S. 542, 548–549 (2015) . the Supreme Court has also interpreted the Clause to prohibit state laws that unduly restrict interstate commerce even in the absence of congressional legislation—i.e., where Congress is “dormant.” This “negative” or “dormant” interpretation of the Commerce Clause “prevents the States from adopting protectionist measures and thus preserves a national market for goods and services.” 3 Footnote
Tenn. Wine & Spirits Retailers Ass’n v. Thomas , 139 S. Ct. 2449, 2459 (2019) ; see also H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38 (1949) ( “This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units.” ); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935) , ( “What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.” ).

The Supreme Court has identified two principles that animate its modern dormant Commerce Clause analysis. First, subject to certain exceptions, states may not discriminate against interstate commerce.4 Footnote
E.g., South Dakota v. Wayfair, Inc. , 138 S. Ct. 2080, 2090–2091 (2018) . Second, states may not take actions that are facially neutral but unduly burden interstate commerce.5 Footnote
Id.

Footnotes 1 See ArtVI.C2.3.3 The New Deal and the Presumption Against Preemption. 2 Comptroller of Treasury of Md. v. Wynne , 575 U.S. 542, 548–549 (2015) . 3 Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019) ; see also H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537–38 (1949) ( “This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units.” ); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935) , ( “What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.” ). 4 E.g., South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2090–2091 (2018) . 5 Id.