Cite as: 511 U. S. 383 (1994)
Souter, J., dissenting
identified with Pike v. Bruce Church, Inc., 397 U. S. 137 (1970).
III
We have said that when legislation that does not facially discriminate "comes into conflict with the Commerce Clause's overriding requirement of a national 'common market,' we are confronted with the task of effecting an accommodation of the competing national and local interests." Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 350 (1977). Although this analysis of competing interests has sometimes been called a "balancing test," it is not so much an open-ended weighing of an ordinance's pros and cons, as an assessment of whether an ordinance discriminates in practice or otherwise unjustifiably operates to isolate a State's economy from the national common market. If a statute or local ordinance serves a legitimate local interest and does not patently discriminate, "it will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., supra, at 142. The analysis is similar to, but softer around the edges than,12 the test we employ in cases of overt discrimination. "[T]he question becomes one of degree," and its answer depends on the nature of the burden on interstate commerce, the nature of the local interest, and the availability of alternative methods for advancing the
12 Where discrimination is not patent on the face of a statute, the party challenging its constitutionality has a more difficult task, but appropriately so because the danger posed by such laws is generally smaller. Discrimination that is not patent or purposeful "in effect may be substantially less likely to provoke retaliation by other states . . . . In the words of Justice Holmes, 'even a dog distinguishes between being stumbled over and being kicked.' " Smith, 74 Calif. L. Rev., at 1251 (quoting O. W. Holmes, The Common Law 3 (1881)). See also Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1133-1134 (1986).
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