Eating Out of Both Troughs
Citation: Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)
Title: Eating Out of Both Troughs: How Nat'l Pork Producers Council v. Ross EATS Away at the Principles of Federalism
Author: Dillon M. Schreckler i
Summary: California’s Proposition 12 places strict requirements on how pork producers may raise their animals both in and out of the state of California. Producers who do not comply with the regulation can be barred from selling in the state and face a fine alongside criminal prosecution. In Nat’l Pork Producers Council v. Ross, the Supreme Court upheld these strict requirements, underscoring that the regulation did not impermissibly burden interstate commerce under the Pike balancing framework. The Court justified this restriction by highlighting that it would only require mere compliance costs to conform with Prop. 12 requirements.
Yet that could not be further from the truth. Proposition 12 extraterritorially enforces California’s own legislative morality on other states, which will bankrupt family-owned pork producers in the name of moral superiority. California has every right to implement these restrictions on its own territory. But doing so—outside of its own boundaries—violates the Dormant Commerce Clause under Pike balancing as it impermissibly burdens interstate commerce through exponentially higher costs, both on the national pork market and individual pork producers.
Keywords: Pork, Prop. 12, Dormant Commerce Clause, Interstate Commerce, National Pork Producers Council, Pike balancing, Sow.
Proposition 12 (“Prop. 12”) is a California law which polices the in-state sale of pork products from out-of-state pork producers.[1] The regulatory language targets pork producers selling “whole pork meat,” who knew or should have known that the meat of an animal or its immediate offspring were “confined in a cruel manner.”[2] The purpose of the law is to prevent a common confinement practice of pigs, which stops sows from lying down, standing up fully, or turning around in their cages.[3] Any producer who disregards these regulations is prohibited from selling pork in California.[4] Failure to comply may also subject producers to a $1,000 criminal penalty and an 180-day prison sentence.[5]
This results in a dilemma for pork producers. Producers cannot exit the market because of the infeasible economic position created by Prop. 12;[6] namely, the exponential compliance costs[7] as well as the requirements for which they must comply with or be barred from the California market.[8] California accounts for thirteen percent of national pork consumption while only producing around one percent of all pork products nationwide—making it the most desirable place for producers to sell their pork.[9] These factual discrepancies demonstrate that the Supreme Court improperly dismissed the National Pork Producer Council’s Dormant Commerce Clause challenge to Prop. 12 under both extraterritoriality and Pike balancing.[10] More importantly, National Pork Producers Council v. Ross, sets a dangerous precedent regarding the future discriminatory effect of state laws which create quasi-national policies that impermissibly burden out-of-state commerce.[11] The ill-conceived opinion magnifies the escalating economic balkanization of states which will lead to a renewed constitutional crisis that the Founders’ originally averted in 1787.[12]
In 2018, over sixty percent of Californians approved a ballot measure known as Proposition 12.[13] Prop. 12 forbids the in-state sale of pork meat that comes from breeding pigs also known as “sows”, or their immediate offspring if they are “confined in a cruel manner.”[14] “Cruel” is defined as preventing pigs from “lying down, standing up, fully extending [its] limbs, or turning around freely.”[15] On December 5, 2019, the National Pork Producers Council (“NPPC”) and American Farm Bureau (“AFB”), filed a complaint for declaratory and injunctive relief against Karen Ross in her official capacity as Secretary of the California Department of Food and Agriculture (“CDFA”).[16] The NPPC brought this challenge to Prop. 12 in federal district court, alleging that Prop. 12 violated the Dormant Commerce Clause through both its extraterritorial effects and its excessive burden imposed on interstate commerce under Pike balancing.[17] Ross asserted that the ballot measure was to 1) protect Californians from foodborne illnesses and associated fiscal impacts,[18] and 2) to prevent animal cruelty in the status quo.[19] She subsequently filed a motion to dismiss the lawsuit for failure to state a claim upon which relief could be granted.[20] The district court granted the motion to dismiss both petitioners’ claims, finding that they failed to allege a substantial burden on interstate commerce.[21] The NPPC and AFB then appealed to the Ninth Circuit, which affirmed the district court’s decision.[22] And the two organizations then appealed again to the Supreme Court.[23]
The United States Constitution provides that “Congress,” and only Congress, “shall have the power . . . [t]o regulate Commerce . . . among the several States.”[24] This principle has deep roots within the common law of the United States to balance the sovereignty of states with the federal government.[25] States that pass laws reaching outside the boundaries of their own territorial limits create conflicts of sovereign power which are “incompatible with the rights of other States, and with the [C]onstitution of the United States.”[26] The Dormant Commerce Clause outlines that a state may not discriminate against interstate commerce in favor of its own commercial actors.[27] Essentially, states cannot pass economic laws that: (1) discriminate against interstate commerce through favoring local commerce; (2) place impermissible burdens on interstate commerce through nondiscriminatory evenhanded regulations; and (3) extraterritorially apply one state’s law into another’s territory.[28] These three theories constitute the contemporary makeup of Dormant Commerce Clause jurisprudence.[29]
Hughes v. Oklahoma[30] held that discrimination against interstate commerce is typically unlawful unless justified by a legitimate regulatory objective, and no alternative and reasonable nondiscriminatory way achieves that objective. Hughes revolved around the arrest of a Texas businessman for transporting minnows to Texas which he bought in Oklahoma.[31] In overturning the Texas man’s conviction, Justice Brennan highlighted the preemptive control of the Dormant Commerce Clause, “even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.”[32] The Court stressed that statutes discriminating against interstate commerce “either on its face or in practical effect” are subject to strict scrutiny.[33] It also observed that a statute could only survive strict scrutiny if the state demonstrates that the regulation serves a legitimate local purpose that is neither (1) related to economic protectionism; nor (2) adequately served by other less discriminatory measures.[34] Therefore, Hughes established that discrimination against interstate commerce is prohibited unless no other way exists to protect a local purpose.[35]
The most contentious strain of the Dormant Commerce Clause is known as Pike balancing.[36] In Pike v. Bruce Church, Inc.,[37] the Court prescribed a test to mechanically analyze claims against evenhanded regulatory state laws that burdened interstate commerce. At issue was the Arizona Fruit and Vegetable Standardization Act that required cantaloupes grown in Arizona ,and offered for sale, to be packed with precise requirements and approved by the requisite authority located in Arizona.[38] The first step of the test directs the court to decide whether the regulation has a legitimate local purpose.[39] This obligates the court to presume that the law is constitutional.[40] Next, the court analyzes whether the local interest could be promoted with a lesser effect on interstate activities.[41] The challenger’s burden is to show that the regulation—imposed on interstate commerce—is clearly excessive in relation to the local benefits of the regulation.[42]
The Supreme Court further expanded the Dormant Commerce Clause doctrine to include the concept of extraterritoriality.[43] While the Court provided no firm definition for extraterritoriality, its analysis hinged on a state’s projection of its own statutory will upon the conduct of other states.[44] The Court developed this analysis in Baldwin v. G.A.F. Seelig.[45] Here, the Court dealt with a New York law which prohibited producers from selling out-of-state milk purchased below New York’s minimum price prescription.[46] The New York Commissioner of Agriculture argued that this law’s importance was to keep New York’s system uninhibited from foreign competition by keeping prices stable for local milk producers.[47] Still, the Court rebuked this justification emphasizing that a state could not impose its legislative will onto another state via its own statutes.[48] A key consideration that must be accounted for, involves the statute’s overall effect on both local and interstate activity.[49] If the Court found that the statute at issue gave advantages to local merchants and consumers over those in other states, then it would violate the extraterritoriality principle.[50]
The doctrine of extraterritoriality also protects against interference from a national economic union through state imposed limitations.[51] In Healy v. Beer Institution, Connecticut required importers and producers to post prices for all products, and affirm under oath that their posted prices were similar to the lowest prices in border states.[52] The Court used Baldwin v. G.A.F. Seelig, Inc. to reaffirm its precedent: state laws which effectively regulate commerce wholly outside its borders are invalid.[53] Ultimately, Healy cemented the proposition that laws having the “practical extraterritorial effect” of regulating conduct in other states violates the Dormant Commerce Clause.[54]
In National Pork Producer’s Council, the Supreme Court dismissed the NPPC and AFB’s claim that Prop. 12 violated the Dormant Commerce Clause.[55] Justice Gorsuch authored the opinion, stressing that this situation was akin to precedent of companies having to comply with the internal laws of various states to sell products in that state.[56] His reasoning to dismiss this case, rather than hear it on the merits, revolved around the fact that petitioners had not alleged—in their petition—that California’s law “purposefully discriminated” against their interests.[57] Essentially, he implied that the only proper way to claim a violation of the Dormant Commerce Clause was through the Hughes test,[58] and Petitioners had not alleged purposeful discrimination in their pleading. He subsequently denied Petitioners’ extraterritoriality argument that the “almost per se rule” had no specific impermissible extraterritorial effect.[59] In addition, Justice Gorsuch declared that the extraterritoriality argument would allow judges to essentially strike down laws based on their own subjective policy preferences.[60]
Justice Gorsuch also dismissed Petitioners’ Pike balancing arguments because the Court could not find an impermissible burden from the statute’s “compliance costs.”[61] The Court stated that the statute was set up to benefit in-state producers over out-of-state producers.[62] And that Petitioners failed to indicate that the practical effects of Prop. 12 revealed purposeful discrimination against out-of-state producers.[63] Instead, Justice Gorsuch suggested Pike balancing was no longer needed because it is merely a license for judges to strike down state regulatory laws based on a subjective cost-benefit analysis.[64]
Contrarily, Chief Justice Roberts and Justice Kavanaugh’s dissents highlight the inherent problems with the majority’s logic.[65] Both Justices underscored the fact that Pike jurisprudence remains a cornerstone of the Dormant Commerce Clause, for the average producer and for farmers’ free access to “every market in the Nation, . . . and [that] no foreign state will . . . exclude them.”[66] Chief Justice Roberts posited that Pike is minimized by the majority’s opinion, since the acknowledged precedent provides that nondiscriminatory burdens on commerce may be struck down if the burden outweighs the benefit of a local practice.[67] This is because California’s large market share of pork consumption makes it impossible to segregate pigs “based on their ultimate marketplace destination in California or elsewhere.”[68] Justice Kavanaugh reinforced Chief Justice Roberts’ claims, arguing the facts showed the impermissible burden of California’s strict standards for pig farming, making it infeasible for producers to exit the market.[69] He also underscored that this strategy verified a blueprint for economically bullying other states into sharing California’s moral preferences, an idea intrinsically counter to the Framers’ ideals.[70] Ultimately, Justice Kavanaugh warned that this political strategy would re-create a modern constitutional crisis akin to the Articles of Confederation.[71]
Justice Gorsuch’s comments on the Constitution’s impact on “the type of pork chops California merchants may sell” signals an abandonment of those the Commerce Clause is supposed to protect.[72] At oral argument, Justice Gorsuch asked the petitioners why the concern was not for the consumers rather than corporate producers.[73] The problem with his logic is that it disregards those truly affected by this burden on interstate commerce, which are the small out-of-state producers that make up almost the entire American pork industry.[74] These downstream effects burden the average family farm—which dominates the landscape of pig farming—not just mega-national corporations like Purdue.[75] Justice Gorsuch also failed to account for the associated criminal penalties for noncompliance of $1,000 and 180 days in prison—another burden that would fall heavily on the average family more than a mega corporation.[76] Nevertheless, the Constitution does directly deal with what type of pork chops a merchant may sell.[77]
The Court’s decision to dismiss Petitioners’ claim against Prop. 12 disastrously misapplied its own Pike balancing precedent.[78] As noted by the Chief Justice, Petitioners should have had the opportunity to continue with their case and argue that Prop. 12 impermissibly burdened out-of-state producers.[79] To pass a normal motion to dismiss, the factual allegations are accepted as true, and the question becomes whether the pleaded facts “plausibly give rise to an entitlement to relief.”[80] Under Pike balancing, the facts must allege whether it is plausible that the “burden imposed”[81] outweighs “the putative local benefits.”[82] Gorsuch’s opinion for the majority hangs his legal cap on the irreconcilable analogy that Petitioner’s complaint resembles previous precedent where those who wanted to leave the state’s respective market could do so voluntarily.[83] The difference between the two situations is that Petitioners alleged that compliance is forced whether or not one intends to sell in the California market at all.[84] Producers are impacted because they will either go bankrupt from such costs, or their products will end up in California, subjecting them to the burdens of the statute.[85] Furthermore, the costs—for those who can comply with the regulations—would be between around 290 and 340 million dollars of additional capital to become profitable again.[86] At the individual level, the cost spread across 65,000 farmers raising 125 million hogs equates to around thirteen dollars extra per pig, or a 9.2 percent (per sow) cost increase at the farm level.[87] The major problem that Petitioners touch upon relates back to the impact on smaller farms and how many may not survive under the California law.[88] Thus, Petitioners allege enough of an impermissible burden under Pike to get past the pleadings stage.[89]
As to the substantive merits of the case, Petitioners had a solid argument to win since the local benefits are minimal in relation to the actual regulation.[90] First, protecting Californians from foodborne illnesses and the associated fiscal impacts fails in application.[91] The problem with this interest is that no evidence was presented to confirm the agency’s ad hoc claim either in court or at the ballot box.[92] So, the only plausible justification left involves the prevention of animal cruelty.[93] This imposed burden weighs heavier than the supposed “compliance costs” that Justice Gorsuch suggests are required to operate in the national market.[94] The interstate costs forced upon pork producers totaled over several hundred million dollars in regards to the national market.[95] Similarly, individual costs also provide ample evidence that “compliance costs” end up crushing small pork producers who cannot afford to comply with the regulation.[96] Consequently, Prop. 12’s extraterritorial effect fails to pass constitutional muster for the second local interest.[97]
Justice Gorsuch’s harsh dismissal of Pike balancing has led some to ponder whether the Supreme Court is leaning towards abandoning the doctrine altogether.[98] Still, this question is not new as jurists like Justice Scalia have despised the Pike balancing doctrine for a while.[99] Justice Thomas, a jurisprudential ally, shares Justice Scalia’s strong animosity for the doctrine.[100] So, it is no surprise that Justice Thomas joined both the majority opinion in outcome, and plurality advocating for the removal of Pike balancing.[101] Justice Barrett also chimed in, remarking that this doctrine cannot actually be squared with the current test.[102] Justice Barrett’s logic hinges on the fact that doing so would have jurists “making the kind of policy decisions [which are] reserved for politicians.”[103] The most surprising dynamic in the Textualist/Originalist camp of the Court was Chief Justice Roberts and Justice Kavanaugh’s break with their usual ideological compatriots.[104] Even so, National Pork Producers Council v. Ross probably does not signal that the Pike balancing artery of the Dormant Commerce Clause may be going away since a majority of the Court still supports the doctrine’s legitimacy including Justices Alito, Jackson, and Sotomayor.[105] However, the doctrine is being somewhat relegated with “extreme caution” where congress has not spoken to preempt problematic state laws.[106]
At the same time, what does this mean for those who seek to challenge state laws that impermissibly burden state commerce? Some think that this relegation will rear its head again in the post Dobbs era.[107] All the same, it signals the continuation of a plan to kick the can back to Congress for laws involving moral policy implications.[108] And both the Roberts and the Warren Courts have strayed from using this doctrine, only striking down “a single statute . . . on the grounds of burden” in over thirty years.[109] Accordingly, with this latest blow to Pike, it seems unlikely that the Court will turn back from their plotted course anytime soon.
Justice Kavanaugh’s dissent articulated a warning that the Court, Congress, and the entire nation ought to consider.[110] If California felt emboldened by this success, what is to stop them or other like-minded states from extraterritorially imposing their own legislative morality?[111] This is already happening, as Florida recently passed their own legislation implicating interstate commerce.[112] The outcome of these contrarian state policies only serves to create economic balkanization, which was what the Framers explicitly adopted the Commerce Clause to prevent.[113] Furthermore, as the smoke from the latest political lawfare in the Court clears, it seems that the nation is possibly headed for a renewed constitutional crisis implicating state sovereignty and concerns regarding federalism.[114] If the Court will not act, then Congress must stop the erosion of horizontal federalism.[115]
Congress has tried to undo the effects of this case by proposing the Exposing Agricultural Trade Suppression Act (“EATS Act”).[116] It effectively preempts the harms of Prop. 12 by requiring states to “not impose a standard or condition on the preharvest production of any agricultural products sold or offered for in interstate commerce,”[117] and codifying a private right of action against government officials who would violate this law.[118] In regards to any state sovereign immunity concerns, individuals and producers can still challenge unconstitutional laws under either the proposed statute or as a violation of the Commerce Clause.[119] Therefore, the EATS Act seems like America’s best shot to avert this renewed constitutional crisis. The only remaining question is if it will pass the Senate.
Even though the Supreme Court dismissed Petitioners’ claims against Prop. 12, their legal reasoning fails to justify such a dismissal under constitutional precedent.[120] Petitioners alleged enough facts to warrant a trial determining whether Prop. 12 impermissibly burdened interstate commerce under Pike.[121] And while Congress has attempted to referee this dispute legislatively,[122] it seems unlikely the EATS Act will pass until Republicans hold a majority in both houses—inevitably prolonging this constitutional crisis.[123]
[1] Cal. Health & Safety Code § 25990(b)(2) (West Cum. Supp. 2023) (“Whole pork meat that the business owner or operator knows or should know is the meat of a covered animal who was confined in a cruel manner, or is the meat of immediate offspring of a covered animal who was confined in a cruel manner.”).
[2] Health & Safety §§ 25990(b)(2), 25991(e)(1).
[3] Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1150–51 (2023) (“Subject to certain exceptions, the law deems confinement ‘cruel’ if it prevents a pig from ‘lying down, standing up, fully extending [its] limbs, or turning around freely.’”); Health & Safety § 25990(e)(1). The benefits to keeping sows in this position involves the prevention include preventing pig-on-pig aggression. Nat'l Pork Producers Council, 143 S. Ct. at 1115; see also Brief of Amicus Curiae American Association of Swine Veterinarians in support of Petitioners at 4, Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468) [hereinafter American Association of Swine Veterinarians] (“Pigs are like any social animal: left in a herd, they fight to establish a dominance order, with all competitors suffering injuries and the losers getting less food and poorer breeding opportunities.”). Another important point for protecting Sows includes the fact those sows in group housing had a 1.32 times higher mortality rate than those sows housed in individual stalls. See Understanding Sow Mortality: Part 2, Nat’l Hog Farmer (Dec. 7, 2020), https://www.nationalhogfarmer.com/hog-nutrition/understanding-sow-mortality-part-2 [https://perma.cc/BJE6-SJPS]. See also Appendices: Declaration of Greg Boerboom at 271–73(a), Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468); Appendices: Declaration of Mike Falslev at 296(a), Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468).
[4] Nat'l Pork Producers Council, 143 S. Ct. at 1150–51. The state of California has begun developing regulations allowing non-governmental organizations to provide compliance certifications. Id. at 1151.
[5] Kristen A. Tidgren, California's Proposition 12 Survives Supreme Court Challenge, Ia. state Univ. Ctr. for Agric. L. & Tax’n (May 19, 2023), https://www.calt.iastate.edu/blogpost/californias-proposition-12-survives-supreme-court-challenge [https://perma.cc/CN86-6R2P]. Civil Penalties would still also apply in this situation. Id.
[6] Nat'l Pork Producers Council, 143 S. Ct. at 1173 (Kavanaugh, J., concurring in part and dissenting in part); see also Tidgren, supra note 5. Advocates against Prop. 12 advocated that increased production prices resulting from the law were estimated to disrupt a twenty billion dollar plus pork industry. Tidgren, supra note 5.
[7] Supreme Court Upholds California’s Proposition 12, Tex. Farm Bureau (May 15, 2023), https://texasfarmbureau.org/supreme-court-upholds-californias-proposition-12/ [https://perma.cc/6UC3-NT5W] (“With less than 4% of the U.S. sow housing currently able to meet the new standard, Rabobank expects a shortfall in compliant pork to bifurcate the U.S. market, leaving California with a severe pork deficit (and high prices), while generating a surplus in the rest of the U.S. market.”).
[8] Nat'l Pork Producers Council, 143 S. Ct. at 1173 (Kavanaugh, J., concurring in part and dissenting in part) (“It would be prohibitively expensive and practically all but impossible for pig farmers and pork producers to segregate individual pigs based on their ultimate marketplace destination in California or elsewhere.”). The policy essentially creates an impossible task for producers in segregating their pigs since they know not of their ultimate marketplace destination. Id.
[9] Tidgren, supra note 5. Cf. Brief of the CATO Institute as Amici Curiae in support of Petitioners at 2, Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468) [hereinafter CATO] (estimating the state only has about .2 percent of the nation’s breeding sows).
[10] Nat'l Pork Producers Council, 143 S. Ct. at 1151; Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). The principle reasoning as to why it would violate the Dormant Commerce Clause centers on the impermissible burdening of Interstate Commerce which Prop. 12 forces on out-of-state pork producers. See Pike, 397 U.S. at 142.
[11] Nat'l Pork Producers Council, 143 S. Ct at 1174 (Kavanaugh, J., concurring in part and dissenting in part) (“California has tried something quite different and unusual. It has attempted, in essence, to unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the Nation.”).
[12] Id. (qualifying that this law may “foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preferences . . . effectively forc[ing] other States to regulate in accordance with those idiosyncratic state demands. That is not the Constitution the Framers adopted in Philadelphia in 1787”). The current conflict is analogous to the problems between the Federalists and the Anti-Federalists over the Articles of Confederation which were solved by the adoption of the Constitution. Jenny Schlecht, Jeff Beach, Noah Fish & Michael Johnson, Supreme Court Decision Puts Pig Policy Under California Control but the Fight Isn't Over, Agweek (May 22, 2023, 5:30 AM), https://www.agweek.com/news/policy/supreme-court-decision-puts-pig-policy-under-california-control-but-the-fight-isnt-over [https://perma.cc/L38C-7QVA]; see also Sarah Isgur, A New Constitutional Crisis on the Horizon, Politico (July 20, 2023, 4:30 AM), https://www.politico.com/news/magazine/2023/07/20/federalism-constitution-state-laws-00106876 [https://perma.cc/252E-ZQCQ].
[13] Nat'l Pork Producers Council, 143 S. Ct. at 1150. Around sixty three percent of voters supported this ballot initiative which revised previous standards on the sale of eggs and imposed new restrictions on in-state sales of veal and pork. Id.
[14] Id.
[15] Id. at 1150–51 (citing Cal. Health & Safety Code § 25991(e) (West Cum. Supp. 2023).
[16] Nat'l Pork Producers Council v. Ross, 456 F. Supp. 3d 1201, 1204 (S.D. Cal. 2020).
[17] Id. at 1207.
[18] Nat’l Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021); Brief in Opposition at 22–23, Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468).
[19] Nat’l Pork Producers Council, 6 F.4th at 1025; Brief in Opposition, supra note 19.
[20] Nat'l Pork Producers Council, 456 F. Supp. 3d at 1204; Fed. R. Civ. P. 12(b)(6).
[21] Id. at 1210.
[22] Nat’l Pork Producers Council, 6 F.4th 1025.
[23] Nat'l Pork Producers Council, 143 S. Ct. 1142.
[24] U.S. Const. art. I, § 8, cls. 1, 3 (emphasis added). The Commerce clause has the express power to preempt any state law under the supremacy clause. See U.S. Const. art. VI, cl 2.
[25] Coyle v. Smith, 221 U.S. 559, 567 (1911); Bonaparte v. Tax Court, 104 U.S. 592, 594 (1881) (“No State can legislate except with reference to its own jurisdiction.”). Therefore, no state can use its law to bind others conduct that exist outside of the state. See also New York Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914); BMW of N. Am. Inc. v. Gore, 517 U.S. 559, 570–71 (1996) (“[O]ne State’s power to impose burdens on the interstate market . . . is not only subordinate to the federal power over interstate commerce, but is also constrained by the need to respect the interests of other States.”).
[26] Ogden v. Saunders, 25 U.S. 213, 369 (1827).
[27] Daniel Francis, The Decline of the Dormant Commerce Clause, 94 Denv. L. Rev. 255, 260 (2017); Hughes v. Oklahoma, 441 U.S. 322, 336 (1979).
[28] Maine v. Taylor, 477 U.S. 131, 138 (1986) (citing Hughes, 441 U.S. at 336); see also Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522 (1935); Brannon P. Denning, Reconstructing the Dormant Commerce Clause Doctrine, 50 Wm. & Mary L. Rev. 417, 447–48 (2008); Barry Friedman & Daniel T. Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 1880 (2011); Susan L. Martin, The Extraterritoriality Doctrine of the Dormant Commerce Clause is Not Dead, 100 Marq. L. Rev. 497, 501 (2016).
[29] Peter C. Felmly, Beyond the Reach of States: The Dormant Commerce Clause, Extraterritorial State Regulation, and the Concerns of Federalism, 55 Me. L. Rev. 467, 477–483, 503 (2003).
[30] Hughes, 441 U.S. at 336 ([O]nce a state law is shown to discriminate against interstate commerce “either on its face or in practical effect,” the burden falls on the State to demonstrate both that the statute “serves a legitimate local purpose,” and that this purpose could not be served as well by available nondiscriminatory means.).
[31] Id. at 324. The Oklahoma statute was meant to protect against the depletion of minnows in Oklahoma’s natural streams. Id.; Okla. Stat. tit. 29, § 4-115(B) (Supp. 1978).
[32] Hughes, 441 U.S. at 326.
[33] Id. at 336.
[34] See id.; see also Felmly, supra note 30, at 494.
[35] Hughes, 441 U.S. at 336–38.
[36] Francis, supra note 28, at 292 (arguing that the use of “burden review” has dwindled dramatically under the Rehnquist and Roberts court); see generally Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). The justices all disagree as to whether it is useful or not. See infra Section III.
[37] Pike, 397 U.S. at 142 (“If a legitimate local purpose is found, . . . . the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”).
[38] Id. at 138 (“A provision of the Act requires that, with certain exceptions, all cantaloupes grown in Arizona and offered for sale must ‘be packed in regular compact arrangement in closed standard containers approved by the supervisor . . . ‘”); Ariz. Rev. Stat. Ann. § 3-503(C) (Supp. 1969). An injunction was placed on the company since they faced an unrecoverable loss of $700,000. Pike, 397 U.S. at 139–40. The original catalyst behind the act involved the fear that some growers had been shipping lesser quality products into the state. Id. at 143.
[39] Id. at 142–43 (simply, the state statute is presumed constitutional and will only be overturned if the burden imposed on interstate commerce is clearly excessive in relation to the local benefit.). Even-handed also means that the statute at issue is facially neutral. Id. at 142 (“Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” (citing Huron Cement Co. v. Detroit, 362 U.S. 440, 443 (1960))).
[40] See id. (“Therefore, as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act.”).
[41] Id. at 142. There are some situations which qualify as legitimate interests, like that of safety precautions. Id. at 143.
[42] Id. (citing Huron Cement Co., 362 U.S. at 443).
[43] See Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 520–21 (1935).
[44] Id. at 521.
[45] See id.
[46] Id. at 519. Essentially, milk produced and bought in other states could not be imported into New York for sale unless it was more expensive than New York price controls. See id. The point of the act was that the legislature wanted to prevent outside competition from hurting their state’s own milk-producers. Id.
[47] Id. at 519–21. This prevented the thirty percent of milk which came from foreign markets like Vermont from co-mingling in the market and hurting the New York market. Id.
[48] Id. at 521 (highlighting that New York was prohibited from “project[ing] its legislation into Vermont by regulating the price to be paid in that state for milk acquired there.”). The Court has also since explained that the extraterritoriality doctrine does not have a clear line to differentiate between per se invalidity or Pike balancing. Brown-Forman Distillers Corp v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).
[49] Brown-Forman Distillers Corp., 476 U.S. at 579; Raymond Motor Trans. Inc. v. Rice, 434 U.S. 429, 440–41 (1978).
[50] See Brown-Forman Distillers Corp., 476 U.S. at 580; New England Power Co. v. New Hampshire, 455 U.S. 331, 338 (1982).
[51] Healy v. Beer Inst., 491 U.S. 324, 335–36 (1989) (“[T]he Constitution's special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.”).
[52] Id. at 327 (referencing Conn. Gen. Stat. § 30-63(c) (1975 and Supp. 1982)). Any inducement for lower prices in border states obligated producers to lower their Connecticut prices as well. Id. The statute required that the prices be affirmed as no higher than those products sold in Massachusetts, New York, and Rhode Island. Id. at 326. However, this was amended by the legislature to only include affirmation that the posted prices were no higher than in border states at the time of posting. Id. at 329; § 30-63b(b).
[53] Healy, 491 U.S. at 332–35 (citing Baldwin v. G.A.F Seelig, Inc., 294 U.S. 511, 528 (1935)). A state cannot establish a wage scale or prices for use in other states, or bar the sale of other products unless the scale has been previously documented. Baldwin, 294 U.S. at 528. See also Brown-Forman Distillers Corp., 476 U.S. at 580 (holding that a State may seek lower prices for its consumers, but it cannot require that out-of-state producers or consumers surrender competitive economic advantages).
[54] Healy, 491 U.S. at 342–43 (citing Brown-Forman Distillers Corp., 476 U.S. at 584). Similarly, the Healy Court outlined that the implications of Connecticut scheme affected regional and possible national regulations, which was something only reserved for the Commerce Clause. Id. at 340.
[55] Nat'l Pork Producers Council, 143 S. Ct. 1142, 1150 (2023).
[56] Id. Contra Pike v. Bruce Church Inc., 397 U.S. 137 (1970); Baldwin, 294 U.S. 511; Brown-Forman Distillers Corp., 476 U.S. 573; Healy, 491 U.S. at 324.
[57] Nat’l Pork Producers Council, 143 S. Ct. at 1154.
[58] See id.
[59] Id. at 1154–55 (holding that these statutes prevented out-of-state firms from undertaking competitive pricing or deprived businesses from competitive advantages they held).
[60] Id. at 1157 (highlighting that the Court acting on this theory would shut down issues of horizontal federalism when better means of mediating these issues exist).
[61] Id. at 1151–52, 58.
[62] Id.; See also Minn. v. Clover Leaf Creamery Co., 449 U.S. 456, 473 (1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127 (1978); United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 346 (2007).
[63] Nat'l Pork Producers Council, 143 S. Ct. at 1158–59. Justice Gorsuch applied the anti-discrimination provision under Hughes rather than under the Pike balancing test. Id.
[64] Id. at 1159 (“Not only is the task petitioners propose one the Commerce Clause does not authorize judges to undertake. This Court has also recognized that judges often are ‘not institutionally suited to draw reliable conclusions of the kind that would be necessary . . . to satisfy [the] Pike’ test as petitioners conceive it.” (citing Dep’t of Revenue of Ky. v. Davis, 553 U. S. 328, 353 (2008))). See also Oral Argument at 30:54, Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468), https://www.c-span.org/video/?523313-1/national-pork-producers-v-ross-oral-argument.
[65] Nat'l Pork Producers Council, 143 S. Ct. at 1167–68 (Roberts, C.J., concurring in part and dissenting in part) (noting that while per se extraterritoriality was foreclosed, the plurality, by applying Pike incorrectly, decided that Petitioners’ failed to plausibly allege a substantial burden on interstate commerce).
[66] Id. at 1168 (citing H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949)).
[67] Id. (“[W]e generally leave the courtroom door open to plaintiffs invoking the rule in Pike, that even nondiscriminatory burdens on commerce may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice.” (citing Dep’t of Revenue of Ky., 553 U.S. at 353 )).
[68] Nat'l Pork Producers Council, 143 S. Ct. at 1173 (Kavanaugh, J., concurring in part and dissenting in part).
[69] Id. at 1172.
[70] Id. at 1174.
[71] Id. at 1173–74.
[72] Id. at 1150 (“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”).
[73] Oral Argument, supra note 65.
[74] See Kevin Schulz, How Big of a Business Is U.S. Pork Production?, Farm Progress (Sept. 12, 2022), https://www.farmprogress.com/livestock/how-big-of-a-business-is-u-s-pork-production- [https://perma.cc/4VFQ-TJAP] (highlighting that there are over 67,000 hog farms in the nation that also supports 610,000 jobs). The added cost to the entire industry would range from around an “estimated $293,894,455 to $347,733,295 of additional capital to construct their sow houses and overcome losses that Proposition 12 imposes.” Brief for Petitioners at 15, Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468); Oral Argument, supra note 65. Similarly, with 99.87 percent of all production occurring out-of-state, Gorsuch’s logic is confusing to suggest that Prop. 12 would not burden out-of-state producers. See CATO, supra note 9.
[75] Sydney Sheffield, Report Shows the Pork Industry’s Impact on Economy, Am. Soc’y of Animal Sci.:Taking Stock (July 27, 2022), https://www.asas.org/taking-stock/blog-post/taking-stock/2022/07/27/report-shows-the-pork-industry-s-impact-on-economy [https://perma.cc/D4JB-YJP5] (noting that Family farms comprise ninety six percent of all U.S. hog farms and eighty one percent of all hog inventories). Out of the 66,439 U.S. hog farms, there’s an average inventory of 1,089 hogs per farm. Id.
[76] See Tidgren, supra note 5. This conflicts with this Court’s precedence of States prosecuting citizens of another state for an act committed outside of the prosecuting State’s jurisdiction, which do not produce detrimental effects within it. See Strassheim v. Daily, 221 U.S. 280, 285 (1911).
[77] See H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539 (1949) (“[F]ostered by the Commerce Clause . . . every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation.”); see also Tidgren, supra note 5.
[78] Nat'l Pork Producers Council, 143 S. Ct. at 1167–68. Extraterritoriality as an argument is foreclosed as a legal argument since the line of cases provide no analogous situation to the moral interests that the state argues since there’s no clear line to differentiate the difference between for the Court. Brown-Forman Distillers Corp v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). However, as the Chief Justice discussed, extraterritoriality still has a place within the Pike analysis to scrutinize actions occurring beyond a state’s borders. Nat'l Pork Producers Council, 143 S. Ct. at 1171 (Roberts, C.J., concurring in part and dissenting in part).
[79] Id. at 1172.
[80] Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
[81] Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
[82] Id.
[83] See Nat'l Pork Producers Council, 143 S. Ct. at 1163; Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978).
[84] Nat'l Pork Producers Council, 143 S. Ct. at 1171 (Roberts, C.J., concurring in part and dissenting in part); Nat’l Pork Producers Council, 6 F.4th 1021,1028 (9th Cir. 2021) (“As a practical matter, given the interconnected nature of the nationwide pork industry, all or most hog farmers will be forced to comply with California requirements.”).
[85] Supreme Court Upholds California’s Proposition 12, supra note 7; Nat'l Pork Producers Council, 143 S. Ct. at 1173 (Kavanaugh, J., concurring in part and dissenting in part).
[86] Compare Pike, 397 U.S. at 145 (highlighting that a cost of $200,000 was enough to show an impermissible burden on interstate commerce), with Brief for Petitioners, supra note 75.
[87] Id. at 9, 15.
[88] Id. at 15–16; Appendices: Declaration of Howard A.V. Roth at 266(a), Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468) (noting, as an example, that Mr. Roth would have to spend over $200,000 to comply with Prop. 12 while also reducing the number of sows in his group pens by ten to fifteen percent. As a result, it would significantly reduce his income); Appendices: Declaration of Greg Boerboom, supra note 3, at 273–76(a); Appendices: Declaration of Phil Borgic at 284(a), Nat’l Pork Producers Council, 143 S. Ct. 1142 (No. 21-468).
[89] Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Pike, 397 U.S. at 142.
[90] CATO, supra note 9. Prop. 12 listed two public interests to justify the enlarged enclosure requirement which included: (1) ending animal cruelty by “phasing out extreme methods of farm animal confinement,” and (2) protecting Californians from foodborne and negative fiscal impacts on the state. Nat’l Pork Producers Council, 6 F.4th 1021, 1025 (9th Cir. 2021) (citing Cal. Prop. 12, §§ 2, 3 (2018)).
[91] Brief in Opposition, supra note 19. The argument by Ross is that there is a risk of food borne illness, not that such a risk was the reason for implementing the legislation.
[92] See, e.g., Jim Wiesemeyer, California Proposition 12 Took Effect Jan. 1, but Supreme Court Action Ahead, Farm J. (May. 12, 2023, 10:42 AM), https://www.profarmer.com/news/policy-update/california-proposition-12-took-effect-jan-1-supreme-court-action-ahead [https://perma.cc/RUE4-8DGN] (“[T]here is ZERO evidence that the regulations have any impact on food borne illness. Even CDFA has admitted this.”). Similarly, “[s]upporters of Proposition 12 claimed it would improve animal welfare and food safety. The law fails to address either of those issues.” Id. See also American Association of Swine Veterinarians, supra note 3 (“[I]n slaughter pigs, the practice of holding in groups . . . may actually increase risks of . . . food-borne pathogens.”); Olivier Andreoletti, Herbert Budka, Sava Buncic, Pierre Colin, John D. Collins, Aline De Koeijer, John Griffin, Arie Havelaar, James Hope, Günter Klein, Hilde Kruse, Simone Magnino, Antonio Martinez Lopez, James McLaughlin, Christophe Nguyen-The, Karsten Noeckler, Birgit Noerrung, Miguel Prieto Maradona, Terrence Roberts, Ivar Vågsholm & Emmanuel Vanopdenbosch, Food Safety Aspects of Different Pig Housing and Husbandry Systems: Scientific Opinion of the Panel on Biological Hazards, 6 EFSA J. 613, 628–33 (2008). Moreover, the Department of Agriculture would already have exclusive jurisdiction over this responsibility under the Federal Meat Inspection Act, and no new additional protections are gained. CATO, supra note 9, at 8. On the financial end, the statute harms California consumers with an estimated cost of $10 million extra, and the possibility of producers going out-of-business. Prop 12 Establishes New Standards for Confinement of Specified Farm Animals; Bans Sale of Noncomplying Products Initiative Statute, Cal. Secretary of State, https://vigarchive.sos.ca.gov/2018/general/propositions/12/analysis.htm [https://perma.cc/TT4Q-DVBV] (last visited Feb. 5, 2025). Some estimates presume that the cost to California pork consumers will end up around costing around $320 million dollars. Ria DeBiase & Emily C. Dooley, ARE Researchers Estimate Proposition 12 Will Cost California Pork Consumers $320 Million, U.C Davis: Agric. & Resource Econ. (Aug. 24, 2021), https://caes.ucdavis.edu/news/are-researchers-estimate-proposition-12-will-cost-california-pork-consumers-320-million [https://perma.cc/P9AD-ZAV3].
[93] See CATO, supra note 9, at 9. California has every right to use its reserved powers under the Tenth Amendment to prevent animal cruelty within its own jurisdiction. U.S. Const. amend. X; Slaughter-House Cases, 83 U.S. 36, 62–63 (1872). However, California’s intention is to not limit itself to only its borders, but to impose its will by simply “end[ing] animal cruelty.” Letter from Cheri Shankar, Proponent of Initiative Statute, to Ashley Johansson, Cal. Att’y Gen. Off. Initiative Coordinator (Aug. 29, 2017), https://bit.ly/30dpanA [https://perma.cc/43LF-DP5B].
[94] Compare Nat'l Pork Producers Council, 143 S. Ct. 1142, 1152–53 (2023) (concluding that petitioners failed to allege that Prop. 12 sought to disadvantage out-of-state producers), and Pike, 397 U.S. at 144–45 (noting the statute’s justification of the requirement would have forced the company build and operate an unnecessary packing plant within Arizona costing $200,000), with Bibb v. Navajo Freight Lines Inc., 359 U.S. 520, 525–27 (1959) (considering other derivative harms flowing from the regulation), and Prop 12 Puts Food Security, Animal Health at Risk, Pacific Rsch. Inst. (Mar. 22, 2022), https://www.pacificresearch.org/prop-12-puts-food-security-animal-health-at-risk/ (estimating that producers choosing to reduce herd and then retrofit their pens, absorb a cost of approximately $17.50 per animal). Similarly, “[t]o remodel an existing barn and add the additional space required by Prop. 12 for a 2,500-sow farm, will cost an estimated $600 per pig or $2.1 million. To build completely new barns that are Prop. 12 compliant would cost an estimated $3,800 per pig ($9.5 million in the 2,500-sow example).” Id. The derivative harms in the national pork market would include the consolidation of farms to conglomerates alongside the lessening of herds which drive the price of pork up. Id.
[95] Brief for Petitioners, supra note 75, at 14–15.
[96] Prop 12 Puts Food Security, Animal Health at Risk, supra note 95.
[97] Nat'l Pork Producers Council, 143 S. Ct. at 1170–71 (Roberts, C.J., concurring in part and dissenting in part) (“[P]etitioners here allege that Proposition 12 will force compliance on farmers who do not wish to sell into the California market, exacerbate health issues in the national pig population, and undercut established operational practices. In my view, these allegations amount to economic harms against ‘the interstate market . . . .’”). See also id. at 1171 (quoting Edgar v. MITE Corp., 457 U.S. 624, 643 (1982)) (concluding that the “’nationwide reach’ of Illinois’s law constituted an ‘obvious burden . . . interstate commerce.’”). Therefore, Prop. 12 effects the national pork market by imposing California’s legislative morality nationwide, subsequently impermissibly burdening interstate commerce. See Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 521 (1935); Brown-Forman Distillers Corp v. N.Y. State Liquor Auth., 476 U.S. 573, 579–80 (1986); Healy v. Beer Inst., 491 U.S. 324, 336 (1989).
[98] Dan Farber, Has the Supreme Court Declared Open Season on Interstate Commerce?, Legal Planet (May 24, 2023), https://legal-planet.org/2023/05/24/has-the-supreme-court-declared-open-season-on-interstate-commerce/ [https://perma.cc/552A-9BGD].
[99] Michael S. Knoll & Ruth Mason, Bibb Balancing: Regulatory Mismatches Under the Dormant Commerce Clause, 91 Geo. Wash. L. Rev. 1, 4 (2023) (noting expressly that Scalia diminished the doctrine as “judging whether a particular line is longer than a particular rock is heavy.”); Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring). Justice Scalia has also attacked the principle of balancing as nothing more than a “quagmire.” W. Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring in the judgment) (“[O]nce one gets beyond facial discrimination our negative-Commerce-Clause jurisprudence becomes (and long has been) a ‘quagmire.’”).
[100] Knoll & Mason, supra note 100, at 4 (emphasizing that Pike balancing revolves “solely on policy considerations”); United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 349 (2007) (Thomas, J., concurring in the judgment); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 619 (1997) (Thomas, J., dissenting) (“[S]urely invites us, if not compels us, to function more as legislators than as judges.”).
[101] Nat'l Pork Producers Council, 143 S. Ct. at 1149.
[102] Id. at 1167 (Barrett, J., concurring in part).
[103] Id.
[104] Id. at 1170–71 (Roberts, C.J., concurring in part and dissenting in part); id. at 1173 (Kavanaugh, J., concurring in part and dissenting in part).
[105] Id. at 1166 (Sotomayor, J., concurring in part); id. at 1171 (Roberts, C.J., concurring in part and dissenting in part). Likewise, both Justices Alito and Jackson agreed with the Chief Justice that a means-end tailoring approach was a feasible option and supported by precedent. Id.
[106] Jeffrey A. Mandell & Isaac S. Brodkey, Recent U.S. Supreme Court Decision Shows that the Dormant Commerce Clause Does Not Preclude Wisconsin Fair Dealership Law Damages for Sales Beyond State Borders, Wis. L. Rev. Forward, 1, 11 (2023) (“‘[E]xtreme caution is warranted before a court deploys implied authority’—under the dormant Commerce Clause—to strike down laws adopted ‘against the backdrop of congressional silence.’”).
[107] Paul Schiff Berman, Roey Goldstein & Sophie Leff, Conflicts of Law and the Abortion War Between the States, 172 U. Pa. L. Rev. 399, 418 (2024); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Contra Jayne Williamson-Lee, Do All State Laws Allow People to Travel to Get Abortion Access?, Wisc. Watch (July 24, 2023), https://wisconsinwatch.org/2023/07/do-all-state-laws-allow-people-to-travel-to-get-abortion-access/ [https://perma.cc/M5S7-4YD2]. Most conflicts regarding this narrow theory under the Dormant Commerce Clause would probably fail since the majority of state laws deal with in state conduct. Compare Berman et al., supra note 108 (arguing that the legal liability that doctors in some states would face constitutes an extraterritorial burden), with Edgar v. MITE Corp., 457 U.S. 624, 643 (1982) (concluding that the “nationwide reach” of Illinois’s law was an ‘obvious burden . . . interstate commerce”), and Nat’l Pork Producers Council, 6 F.4th 1021, 1028 (9th Cir. 2021) (noting the interconnectedness of the national pork market and the nationwide economic impacts alleged), and United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 342 (2007) (emphasizing that treating all private companies the same does make a law discriminatory). The other important thing to note, is that abortion providers could simply leave a market and they are not impermissibly burdened under surrounding state laws where the regulation is only for in-state conduct. See Williamson-Lee, supra note 108; Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978).
[108] Francis, supra note 28, at 292; Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1099 (1986).
[109] Francis, supra note 28, at 292, 301; see generally CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 (1987).
[110] Nat'l Pork Producers Council, 143 S. Ct. 1142, 1174 (2023) (Kavanaugh, J., concurring in part and dissenting in part) (“California’s law thus may foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preferences—and in doing so, effectively force other States to regulate in accordance with those idiosyncratic state demands.”).
[111] Id. (“If upheld against all constitutional challenges, California’s novel and far-reaching regulation could provide a blueprint for other States.”).
[112] Isgur, supra note 13. The crux of Florida’s new law is to prohibit all social media companies from censoring political candidates from their platforms, no matter their speech. This “would leave companies with the choice of whether to pull out of a large economy like Florida or enforce these standards across the United States.” Id.
[113] See Denning, supra note 29, at 479; Robert H. Bork & Daniel E. Troy, Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce, 25 Harv. J.L. & Pub. Pol’y 849, 855–59 (2002). See also Granholm v. Heald, 544 U.S. 460, 472 (2005) (“[A]n immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, 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.”).
[114] See Isgur, supra note 13. See also Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387, 1454 (1987) (highlighting that the entire purpose for the Commerce Clause’s implementation in the Constitution was to prevent economic balkanization between the states); Friedman & Deacon, supra note 29, at 1880, 1927.
[115] Isgur, supra note 13 (“We have historically relied on Congress to resolve these kinds of conflicts, to preempt a state law like Prop. 12 with federal legislation.”). See also Jennifer L. Larsen, Discrimination in the Dormant Commerce Clause, 49 S. D. L. Rev. 844, 853 (2004) (citing Hodel v. Indiana, 452 U.S. 314, 324 (1981)).
[116] Senator Roger Marshall M.D. (R-KS); S. 2019, 118th Cong. (2023).
[117] S. 2019 § 2(b).
[118] Id. § 3(b). The text of Section 3(b) included:
A person, including a producer, a transporter, a distributer, a consumer, a laborer, a trade association, the Federal Government, a State government, or a unit of local government, that is affected by a regulation of a State or unit of local government, that is affected by a regulation of a State or unit of local government that regulates any aspect of 1 or more agricultural products that are sold in interstate commerce, including any aspect of the method of production, or any means or instrumentality through which 1 or more agricultural products are sold in interstate commerce may bring an action in the appropriate court to invalidate that regulation and seek damages for economic loss resulting from that regulation.
[119] U.S. Const. amend. XI; Ex Parte Young, 209 U.S. 123, 159 (1908) (emphasizing that if a state official sought to enforce a violation of the Federal Constitution, then it strips him of his official or representative character acting on behalf of the State.); John Harrison, Ex Parte Young, 60 Stan. L. Rev. 989, 996 (2008) (asserting that the holding in Ex Parte Young was not a legal fiction, as the recognition of his capacity to be sued as an individual was compatible with the reality that a government officer carrying out an unconstitutional statute is stripped of their protections from judicial remedies.); Caleb E. Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1651 (2002). See also Alden v. Maine, 527 U.S. 706, 727 (1999); Va. Off. for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254 n.2 (2011) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996)) (holding a nonconsenting state cannot be sued by a private party even when the Constitution vests complete law-making authority in Congress).
[120] Nat'l Pork Producers Council, 143 S. Ct. 1142, 1152–53 (2023) (concluding that petitioners failed to allege that Prop. 12 sought to disadvantage out-of-state producers); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978); but see Pike v. Bruce Church, Inc. 397 U.S. 137, 144–45 (1970) (noting the statute’s justification of the requirement would have forced the company build and operate an unnecessary packing plant within Arizona costing $200,000); Bibb v. Navajo Freight Lines Inc., 359 U.S. 520, 525–27 (1959) (considering other derivative harms flowing from the regulation on interstate commerce); Edgar v. MITE Corp., 457 U.S. 624, 643 (1982).
[121] Nat'l Pork Producers Council, 143 S. Ct. at 1171.
[122] Senator Roger Marshall M.D. (R-KS); S. 2019, 118th Cong. (2023).
[123] Dan Flynn, EATS Act Brings Delay and Risk to New $1.5 Trillion Farm Bill, Food Safety News (Aug. 22, 2023), https://www.foodsafetynews.com/2023/08/eats-act-brings-delay-and-risk-to-new-1-5-trillion-farm-bill/ [https://perma.cc/YE6G-LCZ9].