HOLDING YOUR HORSES: A VIOLATION OF THE DORMANT COMMERCE CLAUSE

Note Written by: Matthew J. Whitley

Recently, in Jamgotchian v. Kentucky Horse Racing Commission, the Kentucky Supreme Court upheld a regulation prohibiting a horse claimed in Kentucky from racing elsewhere until the close of entries of the meeting at which the horse was claimed, finding that the regulation did not violate the dormant Commerce Clause. In reviewing the regulation, Kentucky employed the simple balancing test articulated in Pike v. Bruce Church, Inc. The Pike balancing test (“balancing test”), in weighing a law’s burdens on interstate commerce against its benefits, holds that a law will be found unconstitutional if the court decides that the law’s burdens on interstate commerce exceeds its benefits.This Note takes issue with the Kentucky Supreme Court’s application of the balancing test in lieu of strict scrutiny, a decision which was flawed in three respects: (1) it rests on the court’s declaration that the regulation was not meaningfully discriminatory; (2) it dismisses the protectionist nature and extraterritorial impact of the regulation; and (3) it fails to require the Commission to establish that the regulation was the least discriminatory alternative to reaching its regulatory goal. This Note does not argue what the court’s disposition should have been, but only how it should have been reached. The goal of this Note is to underscore an arguably analytically deficient application of the dormant Commerce Clause doctrine to a state regulation.

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