A case that will hog a lot of attention during the Court’s October argument session is National Pork Producers Council v. Ross, which presents the question whether California has been way too boarish in restricting the pork that can be sold in California. (Oops, sow sowwy about that. I’ll stop now.)
More precisely, the case concerns California’s Proposition 12, adopted by voters in 2018. Proposition 12 makes it a criminal and civil offense to sell pork in California unless the pork comes from a pig that was born to a sow that was housed under specified conditions (e.g., generally with 24 square feet of space). Two organizations that include pig farmers as members have challenged Proposition 12 as violative of the so-called “dormant” (or “negative”) Commerce Clause.
The dormant Commerce Clause has arisen as a negative implication of the actual Commerce Clause. That is, Congress’s power to “regulate Commerce … among the several States” is thought not merely to enable Congress to preempt state laws that it thinks unduly burden interstate commerce but also to empower the federal courts to forbid states from imposing some burdens.
Some 99.87% of pork eaten in California is produced outside California, so the practical effects of Proposition 12 will be almost entirely extraterritorial. California residents account in turn for some 13% of national pork consumption.
The plaintiffs have alleged that Proposition 12 would require massive and costly changes in pork production—including changes that many pig farmers believe would be harmful to their sows—and that it will be very difficult to track Proposition 12-compliant pork through the many stages of production and distribution. (The case is at the pleadings stage, so plaintiffs’ allegations are to be accepted as true.) Further illustrating the extraterritorial effect of Proposition 12, the California Department of Food and Agriculture proposes to ensure compliance with the law by inspecting out-of-state farms and imposing specific record-keeping requirements.
For most (all?) originalists, the dormant Commerce Clause is highly suspect. As Justice Scalia (joined by Justice Thomas) wrote in dissent in Comptroller of Treasury v. Wynne (2015):
The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause. It contains only a Commerce Clause. Unlike the negative Commerce Clause adopted by the judges, the real Commerce Clause adopted by the People merely empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Clause says nothing about prohibiting state laws that burden commerce. Much less does it say anything about authorizing judges to set aside state laws they believe burden commerce.
Scalia also explained in that opinion that the “lack of governing principle” for the dormant Commerce Clause means that “we must make the rules up as we go along” and that that is “how we ended up with the bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays.”
Justice Thomas repeated his opposition to “this Court’s entire negative Commerce Clause jurisprudence” in South Dakota v. Wayfair (2018), and Justice Gorsuch also questioned “how much of this [jurisprudence] can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause.”
No party in the case is calling for the Court to repudiate the notion of a dormant Commerce Clause, and it is not likely that the Court will do so. The primary question instead is whether the Court will rule that Proposition 12’s extraterritorial effects (as alleged in the complaint) would violate the dormant Commerce Clause.
I’ll note that this whole issue of extraterritorial regulation has attracted lots of interest with respect to potential state abortion laws in the aftermath of Dobbs. The threat (if that’s the right word) would seem to come from both sides. It will be interesting to see what test the Court develops to police extraterritorial effects of state laws.