Pike Test Commerce Clause
What is the Pike Test ?
The United States Constitution grants to Congress the power to regulate commerce with foreign nations and among the several states. (U.S. Const., art. I, 8, cl. 3.)
Even if Congress has not specifically regulated an incident of interstate commerce, state laws that unduly burden interstate commerce and thereby impede free private trade in the national marketplace generally violate the so-called dormant commerce clause. (General Motors Corp. v. Tracy (1997) 519 U.S. 278, 287 117 S. Ct. 811, 818, 136 L. Ed. 2d 761.)
The Internet is undeniably an incident of interstate commerce, but the fact that communication thereby can affect interstate commerce does not automatically cause a state statute in which Internet use is an element to burden interstate commerce.
Absent conflicting federal legislation, states retain their authority under their general police powers to regulate matters of legitimate local concern, even if interstate commerce may be affected. (Lewis v. BT Investment Managers, Inc. (1980) 447 U.S. 27, 36 100 S. Ct. 2009, 2015, 64 L. Ed. 2d 702.)
The test for determining if a state statute violates the commerce clause is set forth in Pike v. Bruce Church, Inc. (1970) 397 U.S. 137 90 S. Ct. 844, 25 L. Ed. 2d 174.
"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
If a legitimate local purpose is found, then the question becomes one of degree. and the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. " (Id. at p. 142 90 S. Ct. at p. 847.)
Under the Pike test, section 288.2, subdivision (b) does not violate the commerce clause. Statutes affecting public safety carry a strong presumption of validity (Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 524 79 S. Ct. 962, 964, 3 L. Ed. 2d 1003), and the definition and enforcement of criminal laws lie primarily with states. (United States v. Lopez (1995) 514 U.S. 549, 561, fn. 3 115 S. Ct. 1624, 1630, 131 L. Ed. 2d 626.)
States have a compelling interest in protecting minors from harm generally and certainly from being seduced to engage in sexual activities. (See Sable Communications of Cal., Inc. v. FCC (1989) 492 U.S. 115, 126 109 S. Ct. 2829, 2836, 106 L. Ed. 2d 93 (Sable); Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607 102 S. Ct. 2613, 2620, 73 L. Ed. 2d 248.)
Conversely, it is difficult to conceive of any legitimate commerce that would be burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them.
To the extent section 288.2, subdivision (b) may affect interstate commerce, its effect is incidental at best and far outweighed by the state's abiding interest in preventing harm to minors.