The Supreme Court’s decision in National Pork Producers Council v. Ross, which the Court handed down Thursday morning, reads like a breath of fresh air. For once, the justices decided not to make themselves even more powerful than they already are.
National Pork involved very difficult questions about just how much impact one state’s laws may have on residents of other states. In 2018, California enacted Proposition 12, a ballot initiative that imposes some of the strictest animal welfare rules in the country. Among other things, Prop 12 forbids pork farmers from confining a breeding sow “with less than 24 square feet of usable floor space per pig.” And it forbids any pork from being sold in California if it was produced on a farm that does not comply with this rule.
Because California is such a large state — its residents buy approximately 13 percent of all pork sold in the United States — the pork industry claimed that this law would require pork farms throughout the country to change their practices to ensure that their products would not be excluded from the California market, and that this would drive up the price of pork nationwide. Indeed, the industry claimed that Prop 12 would “increase farmers’ production costs by over $13 per pig, a 9.2% cost increase,” and those costs will need to be passed on to the consumer.
To save itself from paying these predicted costs, the pork industry sued, invoking a doctrine known as the “Dormant Commerce Clause,” which places some limits on each state’s ability to enact laws that impact other states.
The problem with this legal theory, however, is that all state laws will have some impact on other states. If one state legalizes recreational marijuana, for example, residents of nearby states where cannabis remains illegal will inevitably cross the border to buy weed and bring it back to their home state. If a state raises its minimum wage, that could lead residents of neighboring states to cross the border and work for businesses there instead. If it lowers the speed limit on its highways, that could marginally depress commerce in other states because it will take slightly more time for people and goods to travel in those states.
If the Supreme Court had read the Dormant Commerce Clause aggressively, in other words, it could have given itself an effective veto power over nearly any state law — because it will virtually always be possible to argue that a state law will have economic impacts on other states.
Instead, the Court shrank the Dormant Commerce Clause considerably, freeing states to enact animal welfare laws — and, indeed, laws of any kind — with minimal oversight from federal courts, at least with respect to those laws’ impacts on other states. California’s Prop 12 will stand.
Unfortunately, National Pork also produced a hodgepodge of competing opinions. Briefly, Justice Neil Gorsuch wrote the Court’s primary opinion, which would have shrunk the Dormant Commerce Clause into a simple shield against economic protectionism. Under Gorsuch’s opinion, California may not pass a law that discriminates against goods produced in other states — perhaps by imposing a tariff on those goods or otherwise trying to make them more expensive than in-state goods — but states would be otherwise free to regulate as they choose.
Not all of Gorsuch’s opinion was joined by a majority of the justices, however, And Justice Sonia Sotomayor wrote a separate concurring opinion, which might allow residents of one state to challenge another state’s laws if those laws had truly extraordinary impacts on other states.
The overall thrust of the Court’s decision, however, is that a majority of the Court chose caution over a more imperial desire to resolve every policy question that creates a political controversy.
The Dormant Commerce Clause, briefly explained
The Constitution provides that Congress may “regulate commerce ... among the several states.” On its face, this is an affirmative grant of authority to the national legislature, not a restriction on states’ ability to enact protectionist legislation. Nevertheless, the Supreme Court has long held that this provision of the Constitution, known as the “Commerce Clause,” implicitly prohibits states from enacting laws that could impede free trade throughout the Union — hence the term “Dormant Commerce Clause.”
As the Supreme Court explained in Hughes v. Oklahoma (1979), the Commerce Clause addresses “a central concern of the Framers that was an immediate reason for calling the Constitutional Convention”: the framers’ belief that “the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.”
But the Court has often struggled to articulate where, exactly, the Dormant Commerce Clause kicks in and state laws that impact the economies of other states must fall. In Pike v. Bruce Church (1970), for example, the Court held that a state law should be struck down if its impact on interstate commerce “is clearly excessive in relation to the putative local benefits” produced by the law.
Pike stuck down an Arizona rule that required cantaloupes grown in Arizona to also be packed into crates in that state, and Gorsuch’s National Pork opinion agrees that this Arizona rule went too far. As he notes, Arizona violated the rule against protectionism, because it tried to “insulate in-state processing and packaging businesses from out-of-state competition.”
But Gorsuch also rejects Pike’s “clearly excessive” standard as too vague. After all, how excessive is too excessive? Would California’s animal welfare law be invalid if it caused the price of bacon in Iowa to rise by 3 percent? What if it rose 12 percent? Or 70 percent? Worse, how is a court supposed to determine what “benefits” a state garners from its own laws, and how should it weigh them against the predicted economic costs of that law?
As Gorsuch writes in a part of his opinion that is not joined by a majority of the Court, the pork industry argues that “they will face increased production expenses because of Proposition 12.” Meanwhile, the state argues that “Californians voted for Proposition 12 to vindicate a variety of interests, many noneconomic” — such as preventing animal cruelty and ensuring that pork sold in California is safe to eat.
How is a court supposed to weigh the “benefits” of preventing animal cruelty against the “costs” of higher pork prices? As Gorsuch says, that’s like asking judges to weigh “whether a particular line is longer than a particular rock is heavy.”
Though this portion of Gorsuch’s opinion is not part of the Court’s majority decision, it is echoed by Justice Amy Coney Barrett, who writes in her brief concurring opinion that “California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents—at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians.”
Gorsuch’s opinion would effectively remove courts altogether from the task of deciding when a state law can impact the economy of other states, except when states engage in outright protectionism. But his sweeping argument against weighing moral concerns against economic impacts was embraced by only three justices — himself and Barrett, plus Justice Clarence Thomas.
Justice Sotomayor, meanwhile, wrote a concurring opinion joined by Justice Elena Kagan, which argues that Pike should be read narrowly but not abandoned altogether. Sotomayor warns that “federal courts are well advised to approach the matter with caution,” but that they are not “incapable of balancing economic burdens against noneconomic benefits.”
Sotomayor’s opinion, in other words, leaves open the possibility that, in some future case, a majority of the Court might determine that a state law with hugely consequential economic impacts on other states violates the Dormant Commerce Clause. But she also urges “caution.” And she rejects the pork industry’s argument that Proposition 12 is such a law.
The bottom line, in other words, is that the Court barely left the door open to future Dormant Commerce Clause lawsuits similar to the National Pork case. While it is likely that lawyers will try to walk through that barely cracked door in upcoming cases, they won’t have an easy time of it.
National Pork is a rare display of judicial humility by this Court
The idea that the Court would give itself a broad power to examine the interstate impacts of state laws, and to strike down those laws if it deems those impacts excessive, may seem unusual to observers unfamiliar with this Supreme Court. After all, the Court has never rooted its power to block protectionist laws in the text of the Constitution. Instead, the Dormant Commerce Clause is rooted in a constitutional provision that explicitly does nothing more than give Congress the power to regulate.
But this Supreme Court so rarely exercises judicial restraint that the National Pork decision is a welcome departure from much of the rest of the Court’s jurisprudence. In Shelby County v. Holder (2013), for example, the Court struck down a key provision of the Voting Rights Act because it claimed that provision violates the “‘fundamental principle of equal sovereignty’ among the States” — a principle that is mentioned nowhere in the Constitution.
Similarly, the Court invented a doctrine known as “major questions,” which allows it to veto any regulation handed down by a federal agency, despite the fact that this major questions doctrine is also mentioned nowhere in the Constitution or in any federal statute. The Court’s decision in Whole Woman’s Health v. Jackson (2021) effectively immunized a Texas anti-abortion law from judicial review — based on a legal argument that, if taken seriously, would permit any state to nullify any constitutional right simply by enacting an unconstitutional law that can only be enforced by private bounty hunters.
The Court’s current majority, in other words, has spent the past several years concentrating power within itself, often with no legal basis to do so.
National Pork is a break from this pattern. Given the opportunity to give itself a broad veto power over state laws, the Supreme Court instead chose humility. Thursday’s decision reduces the judiciary’s authority to block state laws that federal judges deem to have too much impact on other states.
Notably, however, National Pork does not prevent the pork industry (or any other industry, for that matter) from seeking a federal solution if it believes that a state law is too burdensome. As Gorsuch writes in a portion of his opinion that is joined by a majority of the Court, “Everyone agrees that Congress” may exercise its authority over interstate commerce “to regulate the interstate trade of pork, much as it has done with various other products.”
If the pork industry does not like Prop 12, in other words, it may lobby Congress to enact a federal law preempting California’s animal welfare laws. But it cannot run to the courts just because California imposed costs on pork producers that they’d rather not pay.