Prudential Standing and the Dormant Commerce Clause: Why the “Zone of Interests” Test Should Not Apply to Constitutional Cases

The Fifth Circuit in National Solid Waste Management Ass’n v. Pine Belt Regional Solid Waste Management Authority used the prudential “zone of interests” standing test to bar the plaintiffs, who met constitutional standing requirements, from filing a facial, per se challenge under the dormant Commerce Clause, which prohibits state or local laws that interfere with interstate commerce. The Supreme Court had invalidated as facially discriminatory a similar flow control ordinance requiring all local waste be processed by a government-approved processor, thus excluding all other in-state or out-of-state firms. This Article will show that tying the murky “zone of interests” test to the ill-defined dormant Commerce Clause doctrine is counterproductive. Courts should require constitutional litigants to show only that they have constitutional standing without the additional hurdle of meeting the “zone of interests” standing test.