May 11, 2023

If you're conversant with negative Commerce Clause doctrine — AKA the "dormant" Commerce Clause — then you know why the Supreme Court split the way it did.

The case that came out this morning is National Pork Producers Council v. Ross.

Gorsuch announces the judgment. Much of what he says is joined by the conservatives Thomas and Barrett and by the liberals Sotomayor and Kagan, and some of what he says is joined only by Thomas and Barrett. The Chief Justice concurred in part and dissented in part, and he was joined in that dissent by the conservatives Alito and Kavanaugh and also by the liberal Jackson. There are some additional opinions by Sotomayor, Barrett, and Kavanaugh.

The Commerce Clause — which empowers Congress — has been interpreted to bar the states from discriminating against interstate commerce and, more controversially, from putting too much of a burden on interstate commerce. The California law in question in the case forbids the sale, in California, of meat from pigs that have been raised, anywhere, in a manner California deems cruel. 

The split among the conservatives seems to be between those who favor judicial restraint and federalism and those who want more freedom from regulation.

45 comments:

Dave Begley said...

So, the bottom-line is that CA can make policy for the rest of the country. Correct?

Hasn't CA already outlawed ICE vehicles by a date certain? And hasn't MN and other states adopted CA's ruling?

Congress needs to act.

Original Mike said...

Who won?

Original Mike said...

"So, the bottom-line is that CA can make policy for the rest of the country."

Sh*t.

gahrie said...

Too bad. I was looking forward to eating pork pate again.

Mr Wibble said...

States should outlaw the importation of agricultural products harvested using illegal labor.

rehajm said...

While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.

Heh.

Lance said...

Dormant Commerce Clause wouldn't be an issue if we didn't have California and Texas acting like fourth and fifth branches of the Federal government.

tim maguire said...

Dave Begley said...So, the bottom-line is that CA can make policy for the rest of the country.

That's the real issue with CA--it's not freedom from regulation vs. federalism. CA is trying to become a second federal government; to use its size and influence to bend other states to its will.

Jim Gust said...

Why can't the pork producers simply refuse to sell into California? Would that be unconstitutional?

Ann Althouse said...

"So, the bottom-line is that CA can make policy for the rest of the country. Correct?"

It can have that effect if it wasn't behaving out of economic protectionism (I think). I haven't read the whole thing and tried to figure it all out.

California won.

Ann Althouse said...

The judicial restraint answer is that if there's really a problem with burdening interstate commerce, Congress ought to pass a law and preempt it. It's not the judiciary's role to weigh burdens and benefits and prevent states from going too far.

narciso said...

seems like a stuoid law, and as it affects the entire jurisdiction of the 9th Circus,

Rabel said...

The pigs won. Bless their tasty little hearts.

Narayanan said...

does this also mean : a CA farmer can be commissioned to raise pigs in any manner desired by e.g. IA or NE client for export out of state

Mike (MJB Wolf) said...

It's not the judiciary's role to weigh burdens and benefits and prevent states from going too far.

Then our state courts are doing it wrong here. The SCOCal routinely overturns laws they don’t like and extend and radicalize ones that don’t go far enough for the loons that run Sacramento.

Mattman26 said...

Gorsuch would have held that where the state law does not intentionally discriminate against out-of-state actors, the court will not weigh the economic impact against the supposed purpose of the law. But this did not command a majority.

Actually a pretty interesting series of opinions.

tim maguire said...

Narayanan said...does this also mean : a CA farmer can be commissioned to raise pigs in any manner desired by e.g. IA or NE client for export out of state

Or they can choose not to send their pork to those states. Far fewer farmers would be hurt by the loss of access to the Iowan market.

Ann Althouse said...The judicial restraint answer is that if there's really a problem with burdening interstate commerce, Congress ought to pass a law and preempt it.

Congress do its job? Fat chance. By the early 90's, people were already writing books about how congress passes its legislative duties off to the regulatory state so it can focus on earmarks and other "bring home the bacon" initiatives.

gahrie said...

The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.

Wince said...

Me? I was persuaded by the oral argument of Arnold Ziffle, "one charming motherfuckin' pig."

Esteban said...

Funny, the "conservative" six seem be far more ideologically diverse than the liberals have ever been in 40+ years on earth.

Mark said...

A Texas plaintiff just had a judge rule on abortion medication access for the whole country.

Where were you then, Bigly?

Readering said...

Is there any other country that has America's system of divided sovereignty? I suppose the UK has been moving in that direction in the decades since I grew up there. Do Canadian provinces act like that? Large places like Brazil, India?

Kate said...

Beans AND nuts.

The people worried about the SCOTUS being owned by conservatives need to chill.

Josephbleau said...

“Why can't the pork producers simply refuse to sell into California? Would that be unconstitutional?”

They could, or they could make two brands, one for CA and one for the rest, it would depend on how much the extra pig production expense goes up under the new method compared to the cost of maintaining two brands, I would guess that no major producer could afford to leave the CA market. (Lots of chorizo.)

Cars can be purchased with either CA or Federal emission specs in the other states, auto companies can do what gives them max profit.

rhhardin said...

Morningstar breakfast strips are pretty good (if you don't overnuke them), make of humanely raised soybeans.

Ignorance is Bliss said...


It can have that effect if it wasn't behaving out of economic protectionism...

Almost certainly this is true for some products, but probably not
for pork. Right now you can walk into any major chain grocery store and buy either
1) chicken
Or
2) free-range hormone-free cruelty-free non-gmo organic bipoc trans chicken*

I expect we will see something similar for pork.

*watch out for those trans hens. They taste like cock.

Tim said...

It is pretty simple. If producers would just stop shipping to California, without colluding, the problem would not exist. Just do the rational thing and walk away from the business. Oil companies should consider the same solution.

alanc709 said...

Let them eat bugs

Kirk Parker said...

Jim Gust,

Indeed; let's start a "California You Are Dead To Me" movement.

boatbuilder said...

I guess that I will have to read the case, but if it means that Wickard v. Filburn is dead, Hallelujah!. Unfortunately it sounds like the farmer still gets screwed, by both the Feds and California.

KellyM said...

California has been throwing its weight around for decades: see auto emissions regulations.

I wonder if the state has the same percentage of pig farms as compared to other states. If not, it means the prices for pork and pork products will climb sharply. Groceries here are already too expensive.

Jupiter said...

I think they got it right. Although, this is a little perplexing;
"This Court has held that state laws offend this dormant aspect of the Commerce Clause when they seek to “build up . . . domestic commerce” through “burdens upon the industry and
business of other States.”

This seems to be saying that the constitutionality of a law depends upon the intentions of the persons who drafted it.

Rusty said...

Ann Althouse said...
"So, the bottom-line is that CA can make policy for the rest of the country. Correct?"

"It can have that effect if it wasn't behaving out of economic protectionism (I think). I haven't read the whole thing and tried to figure it all out.

California won."
Which will make buying processed chicken in California more expensive. The chicken farmers having moved to friendlier states.

Rusty said...

Ann Althouse said...
"So, the bottom-line is that CA can make policy for the rest of the country. Correct?"

"It can have that effect if it wasn't behaving out of economic protectionism (I think). I haven't read the whole thing and tried to figure it all out.

California won."
Which will make buying processed chicken in California more expensive. The chicken farmers having moved to friendlier states.

Yancey Ward said...

It's the right decision. Congress can always act using the commerce clause, and override California's regulation, but the fact that Congress can do it doesn't mean shit if it hasn't done it. Can other states simply ban products made in California? If not, why not?

Yancey Ward said...

"watch out for those trans hens. They taste like cock."

Chuck would like that.

Chuck said...

It is now 10:07 (blog time) as I post this.

Earlier this evening, I submitted a comment congratulating Althouse on the her succinct summary of a complicated case. I added the .url for the SCOTUSblog summary of the case. That's the sort of comment that any reasonable blog proprietress ought to appreciate.

And as of this time, my comment has not been posted to the comments page.

But the following comment (not replying to anything that I have posted to this page since my single comment noted immediately above is not so far making it through "moderation" and is not posted) did make it through "moderation" and was published on Althouse's comments page:

Yancey Ward said...
"watch out for those trans hens. They taste like cock."

Chuck would like that.

5/11/23, 7:46 PM


In other words, that Yancey Ward comment was on a page where nothing that I had written had even appeared.

Althouse, you have a commenting-and-moderation problem. And it isn't me.

Chuck said...
This comment has been removed by the author.
Readering said...

3 Republicans and 2 Democrats on one side. 3 Republicans and 1 Democrat on the other.

Rusty said...

Chuck trying to game the system.

boatbuilder said...

I read (well, skimmed) the opinion. I agree with Kavanaugh-the question of whether the intent, purpose and effect of the law is to impose California’s moral preferences on the rest of the country is one that ought not to be dismissed as trivial. He notes that other states might feel inclined to ban products produced by the labor of illegal migrants, or products produced by companies that either do or don’t pay for abortions for employees.

Interesting case. Some very strange bedfellows in the various concurrences and dissents.

Chuck said...

Rusty said...
Chuck trying to game the system.

There's a "system"?!?

boatbuilder said...

Sucks to be judged by your perceived reputation, Chuck.
Too bad!
Imagine how Trump feels.

Left Bank of the Charles said...

I believe what’s actually dormant is not the Commerce Clause but the Privileges and Immunities Clause of Article IV, Section 2, Clause 1:

“The Citizens of each State shall be entitled to all of Citizens in the several States.”

Justice Washington couldn’t figure how to make that work back in Corfield v. Coryell, the 1823 case that let New Jersey limit oystering and clamming to residents. New Jersey could have solved its tragedy of the commons problem with nondiscriminatory license fees. The discriminatory impact cases have had to use the Commerce Clause, and one suspects that a strain of conservative thought does want to acknowledge an expanded theory of rights under Privileges and Immunities while still protecting business interests. So the charade continues.

Gravel said...

According to a quick Bing search, CA consumes 13% of the pork produced in the US, but only produces 1%. So yeah, expect your bacon to cost more soon - but hopefully not too much. I think Ignorance is Bliss has it right - pork producers will continue to operate as usual for the other 87% of the country, while adding new operations to accommodate CA and offer the compliant pork to the virtue signalers who live elsewhere.