So let's see if all this chatter about Healthcare falling under the auspices of the Commerce Clause stands up to the Pike Test from Pike v Bruce Church Inc.
1.The statute must have a “legitimate” and “public” purpose. It must be within the state’s police power, and not designed either to regulate interstate commerce as such, or to discriminate against out-of-state economic interests in favor of private in-state interests.
2.The effect on interstate commerce must be “incidental,” rather than the primary purpose of the statute.
3.The interest must be “local.” It must regulate elements that are peculiar to the state, such as its harbors, and not impose a pattern of “multiple inconsistent burdens” with other states’ conflicting laws on an interstate enterprise.
4.The statute must “regulate evenhandedly.” The state must be regulating an activity as part of its police powers. If it is only a “market participant” similar to a private entity, the dormant Commerce Clause is not a bar to its economic decisions even if they impact or discriminate against interstate commerce, though the Privileges and Immunities Clause of Article IV may be a constraint. Moreover, if a state is, in fact, regulating even in the pursuit of a legitimate interest, the state may not discriminate against out-of-staters, absent compelling reasons.
5.The statute must “effectuate” its local public interest. If there is little evidence of such a result, the court may infer that the interstate impact was intentional and hence unconstitutional, after all.
