Arlene Rosenblatt v. City of Santa Monica, California, et al.

Under the dormant Commerce Clause framework set forth by this Court, a state law is subject to heightened scrutiny if it either “discriminates against interstate commerce” or has an “extraterritorial reach.” This appeal raises two important constitutional questions, both of which are subject to an entrenched circuit split:

1. Whether a local ordinance that discriminates against interstate commerce, and was enacted for a discriminatory purpose, must additionally discriminate exclusively against nonresidents to be subject to heightened scrutiny under the dormant Commerce Clause.

2. Whether a local ordinance that purports to ban advertisements for interstate services made over the Internet, and is enforced in that extraterritorial manner, can be saved from dormant Commerce Clause scrutiny based on an irrebuttable “presumption” that the legislature did not “intend” for the ordinance to apply in the extraterritorial manner in which the ordinance is being enforced.