Justice Gorsuch tried to narrow the dormant commerce clause to focus on state discrimination against other states, but he couldn’t get a majority to agree on the rule.
Justice Gorsuch tried to narrow the dormant commerce clause to focus on state discrimination against other states, but he couldn’t get a majority to agree on the rule.
‘W hile the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.” So wrote Justice Neil Gorsuch this morning in an opinion for the Supreme Court in National Pork Producers Council v. Ross, rejecting a challenge by pork producers to a California law banning the sale of pork if the pigs were confined in “cruel” conditions. None of the justices were prepared to strike down the California law, however, and the Court fractured into three ideologically heterodox factions over how to interpret the so-called dormant commerce clause.
In so doing, the justices missed an opportunity to overrule the vague, standardless judicial-activist test of Pike v. Bruce Church, Inc. (1970), under which the Court weighs whether state laws impose an “undue burden” on interstate commerce that outweighs the benefits of the state law. No justice was willing to overrule Pike entirely, and only Justices Clarence Thomas and Amy Coney Barrett were willing to join Gorsuch in ruling that courts are simply not capable of undertaking such a task. The Court’s opinion did, however, rein in the application of Pike and significantly pared back the use of the dormant commerce clause to stop state laws with “extraterritorial” effects — a win for California’s ongoing campaign to impose its laws on the whole country.
Pigs in a Poke
National Pork Producers arose from yet another such California law. Proposition 12, passed in 2018, banned the sale in California of pork, veal, and eggs if the animals were bred or confined in “a cruel manner.” Pork producers challenged the law. Matthew Scully wrote a defense of the ban here at NRO, which was cited in Gorsuch’s opinion as an exemplar of the interests favoring the law. The ban on sale applies only in California, but given the sheer weight of the California market, the nationwide integration of the pork-distribution industry, and the fact that “almost all” California-sold pork is raised elsewhere in the country, it was understood that the new standards would, as a practical matter, force many American farmers outside of California to comply with the California standards, raising their costs. Alex Padilla, then California’s attorney general and now a senator, argued as much in favor of Proposition 12. That’s an offense against the general principles of federalism. But does it violate the Constitution?
Unwritten but Never Truly Dormant
The dormant commerce clause is simultaneously one of the oldest and most controversial doctrines in constitutional law. It is uncontroversial that, when Congress uses its power to pass laws regulating interstate commerce, it can preempt state laws inconsistent with federal law. The dormant-commerce-clause theory goes a step further: that in at least some cases, states may not regulate aspects of interstate commerce even when Congress has not legislated, because doing so would conflict with the power of Congress to decide what to regulate and what to leave alone. Chief Justice John Marshall first broached this idea in Gibbons v. Ogden (1824), finding “great force” in an argument made to the Court by Daniel Webster:
[Webster argues] that, as the word “to regulate” implies . . . full power over the thing to be regulated, it excludes, necessarily, the action of all others that would perform the same operation on the same thing. . . . It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to leave untouched, as that on which it has operated.
The Court in Gibbons ruled in favor of Webster’s steamboat clients, who included Cornelius Vanderbilt, against the heirs of Robert Fulton, on the ground that existing federal laws regulating river navigation preempted a New York State steamboat monopoly granted to Fulton and Robert Livingston. Gibbons thus didn’t need to decide whether to adopt the theory of the power of congressional silence, but as a landmark ruling, it has been closely read ever since. Nor has the Court ever gone quite as far as Webster argued, to preclude states entirely from regulating anything Congress could touch — a vast area, given how much more broadly “interstate commerce” has been read since the 1930s. But Marshall developed the theory of exclusive federal commerce powers in later cases, and it was firmly settled in Supreme Court caselaw by the 1870s. Critics of the doctrine and its growth remain. Justice Clarence Thomas has been particularly skeptical of using unwritten federal law to displace traditional state powers.
It has typically been said that there are four general categories of dormant-commerce-clause rules: (1) states may not discriminate against commerce from other states; (2) states may not directly regulate the mechanisms and instrumentalities of interstate commerce; (3) states may not pass laws that are effectively extraterritorial, thus extending their own commerce powers into other states; and (4) states may not impose an undue burden on interstate commerce. Even adherents to the general theory of the dormant commerce clause have long been critical of the Pike “undue burden” test, given that Pike was a product of the Court’s activist era, and assessing undue burdens gets courts involved in second-guessing legislative decisions with no guidance from constitutional text and no real manageable standards.
Today’s decision yet again failed to drive a stake through the Pike test. But Gorsuch’s opinion, which attracted a majority for some of his reasoning and the support of all nine justices for at least part of its judgment, put the extraterritoriality category more squarely in its crosshairs. It also gained a majority for the broader warning that “extreme caution” should be applied by courts in using the dormant commerce clause to strike down state laws. Gorsuch set aside for another day, however, what to make of the category of cases dealing with direct regulation of interstate transport and communications: “We do not face a law that impedes the flow of commerce. Pigs are not trucks or trains.”
Three Ways to Skin a Pig
Today’s decision is one of those cases that requires a flow chart to track. Gorsuch mustered a five-justice majority to uphold Proposition 12, joined by Thomas, Barrett, Sonia Sotomayor, and Elena Kagan. Chief Justice John Roberts, joined by Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson, agreed with a good deal of the majority’s analysis but wanted to send the case back for further proceedings to see whether an undue burden could be shown. (If there’s an ideological divide here, it may be that Roberts, Alito, Kavanaugh, and Jackson share more confidence than their colleagues in the competence of courts, given that Alito has been on the federal bench for three decades and the latter two were both on the D.C. bench for years.)
The most dramatic impact of the majority opinion was in limiting challenges to state laws on extraterritoriality grounds. The pork producers argued that state laws that would force changes to business in other states were “almost per se” unconstitutional. None of the justices bought it. Gorsuch argued that the Court’s prior dormant-commerce-clause cases on extraterritorial effects could, in most instances, simply be read as striking down laws that effectively discriminated against commerce from other states — and, indeed, that this was true of the cases under all four categories. He offered a lecture on taking broad language in those cases out of the context of their facts:
Petitioners read too much into too little. The language of an opinion is not always to be parsed as though we were dealing with language of a statute. Instead, we emphasize, our opinions dispose of discrete cases and controversies and they must be read with a careful eye to context. . . . The language petitioners highlight appeared in a particular context and did particular work. [Alterations and citations omitted.]
Roberts and the other partial dissenters argued for continuing to examine extraterritoriality, but only as evidence of discrimination.
Sure, the majority noted, “in our interconnected national marketplace, many (maybe most) state laws have the ‘practical effect of controlling’ extraterritorial behavior.” But what standards exist to decide how much effect is too much? Nobody disputed that states could have some laws about the sale of, say, products made with slave or child labor. Kavanaugh argued that Proposition 12 would dictate national terms because of the power of California, but in a section of the opinion joined only by Thomas and Barrett, Gorsuch warned that applying the extraterritoriality standard this way denied California the same powers that other states enjoyed — a principle the Court cited in Shelby County v. Holder to restrict Congress in applying “preclearance” rules to the voting laws of only some states:
Justice Kavanaugh . . . says the quiet part aloud: California’s market is so lucrative that almost any in-state measure will influence how out-of-state profit-maximizing firms choose to operate. . . . But if that makes all the difference, it means voters in States with smaller markets are constitutionally entitled to greater authority to regulate instate sales than voters in States with larger markets. So much for the Constitution’s fundamental principle of equal sovereignty among the States.
Kavanaugh, for his part, wrote separately to endorse an observation made previously by Thomas that there may be other clauses in the Constitution (such as the import/export clause and the privileges and immunities clause) that could provide more robust protection against this kind of extraterritorial overreach.
Where the majority fractured was over Pike. Gorsuch, Thomas, and Barrett would have limited the undue-burden test so severely that it would really matter only in cases where the burden was used to show, in practice, that state laws were intended to discriminate against other states. In an echo of the abortion-law debates over the malleability of undue burdens, Gorsuch worried that the test gave judges too much “free-wheeling power” unconstrained by “neutral” principles, quoting Justice Antonin Scalia’s quip that weighing economic burdens against moral benefits is like being asked to decide “whether a particular line is longer than a particular rock is heavy.” “The competing goods are incommensurable,” Gorsuch wrote. “Your guess is as good as ours. More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives.”
Gorsuch added that too much judicial supervision would hamstring the ability of states to differ from other states:
All it would take is one complaint from an unhappy out-of-state producer and — presto — the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers “excessive.” . . . The same would go for all manner of consumer products currently banned by some States but not by others — goods ranging from fireworks . . . to single-use plastic grocery bags. . . . Rather than respecting federalism, a rule like that would require any consumer good available for sale in one State to be made available in every State.
It is hard to read this without considering the looming effort by California to use its leverage over pharmacies to compel other states to allow the sale of the abortion pill.
Junking the undue-burden standard, however, was a bridge too far for Kagan and Sotomayor, who joined Gorsuch and Thomas in also concluding that the pork producers hadn’t shown an undue burden, given that they at least had the choice to forgo California’s market or segregate their operations to produce California-bound pork differently. Roberts and the other partial dissenters agreed that compliance costs alone are not an undue burden.
The net result of National Pork Producers will be to focus future dormant-commerce-clause litigation more narrowly on framing state laws as discriminatory. More creative lawyers may be incentivized to take up the invitations of Kavanaugh and Thomas to look at other clauses of the Constitution. But a clearer roadmap was available; there just wasn’t a majority to draw it.