Walter Olson
The Supreme Court has ruled that California may prohibit the in‐state sale of pork raised out of state by methods it deems inhumane, rejecting a constitutional challenge raised by pork producers who had argued that the law would badly disrupt the economies of other states. In so doing the Court appears to have significantly whittled down the scope of the so‐called Dormant Commerce Clause, a clause that has been drawn skepticism from Justices including the late Antonin Scalia, Clarence Thomas, and Neil Gorsuch. While the new decision is a complex one with multiple opinions, it appears to give the green light to a wide array of state environmental and consumer regulations that may inflict significant economic harm on other states but do not discriminate between in‐state and out‐of‐state producers.
Cato had filed a brief urging the Court to grant review in this case to bring some clarity to the application of the Dormant Commerce Clause, given the highly interstate nature of the market— almost all pork Californians consume is produced in other states—and the substantial burdens of the measure, which include the prospect that California agricultural agents will travel around the country to ensure that farmers in other states comply with California law. Ilya Shapiro, writing with Frank Garrison in 2017, described the clause as “the idea that states can’t impose regulations that impede interstate commerce even if Congress hasn’t expressly forbidden them to do so.…While the commerce clause has been invoked since the New Deal as a warrant for nearly unlimited federal power, its inverse actually seems more faithful to a founding document concerned with the free flow of commerce throughout the nation.”
As Jonathan Adler writes, “the decision complicates the already questionable ‘Roberts Court is pro‐business’ narrative, by demonstrating (yet again) that when conservative jurisprudential commitments conflict with corporate interests, the former prevail. Combined with decisions such as Virginia Uranium v. Warren, National Pork Producers shows that business groups cannot depend on conservative justices to support their challenges to state regulations.”
And a comment from Jeff Kosseff: “Until yesterday, I had been somewhat optimistic about using the Dormant Commerce Clause to avoid a state‐by‐state patchwork of internet laws. But the National Pork Producers opinion has pretty much eliminated that optimism.”
Cato has filed briefs in Dormant Commerce Clause cases involving state rental car taxes calculated to burden out‐of‐staters, Colorado’s attempt to regulate how power imported from out of state is generated, and Tennessee’s attempt to reserve the issuance of liquor licenses to those who have lived in the state for a long time.
