From Prof. Michael McConnell (Stanford) on the Dormant Commerce Clause

Prof. McConnell is one of the top constitutional law scholars in the country, and I was delighted that he passed along this item on National Pork Producers Council v. Ross (note that he participated in drafting the US Chamber of Commerce amicus brief in the case):

National Pork Producers Council v. Ross may be one of the most consequential cases of the Term, and I don’t just mean for the price of pork chops. A few states, most importantly California, are such large markets that—if the Supreme Court does not intervene—they can impose their notes of proper standards of production on every other state in the Union, at little cost to themselves. Because nationwide producers often cannot segment their markets, producers will be forced to follow California rules for the whole country, or face the crippling consequence of exclusion from the California market.

Add to this fact that these large states—California, Texas, New York—are also one-party states, whose views on social policy are often at one or another extreme. More moderate Americans in other states will be governed by laws they would not vote for, if they had a chance. This is contrary to the democratic postulates of our federal system.

Californians consume 13 percent of all pork produced in the United States, but California farmers produce almost none of it (0.13 percent of breeding pigs, to be exact). But California voters have strong views on the ethical treatment of pigs, at least when other people pay the cost. In 2018, California passed Proposition 12, which allows the sale in California only of pork produced under specified conditions far more costly than currently being practiced anywhere else. California regulators will roam the land inspecting farms in other states to enforce the law.

For Californians, this was cheap and easy virtue signaling. Almost no California farmers are affected, yet prices will go up everywhere.

The California law at issue in National Pork Producers is a grave threat to our system of interstate federalism, where the people of each state have authority to govern conduct that takes place or produces effects within their own borders, but not elsewhere. This is in contrast to the international system, where countries are free to use their economic power—call it “sanctions”—to promote their social and geopolitical objectives. When states entered the Union, however, they gave up their power to treat other states as foreigners, in favor of a constitutionalized common market. States cannot punish conduct in other states, and they cannot bar entry or importation of people or products based on conduct that occurred in other states, except when the product will have a material effect within the state.

If a pork producer used meat-packing practices that created a danger of trichinosis, California could prohibit its passage across state lines into the state. But where, as in this case, the product is indistinguishable in terms of safety and quality from any other pork, the law should be recognized for what it is: an attempt at extraterritorial regulation in violation of the Commerce Clause.

This will not stop with pork. Once California is green-lighted to use its monopsony power to pressure businesses all over the country to comply with Californian social preferences, there will be no end to it. Most obviously, California will prohibit imports from companies that do not comply with its version of ESG regulations. Next up will be companies that exceed California carbon emission targets. Why not also companies in states that ban abortions? The banned products from such laws would not have any material effects in California; the laws simply export California regulatory preferences to people who have no way to vote on them.

And it will not just be California. No doubt Texas will get into the act. Why not bar importation of products from companies with closed shops? Or companies that include abortions in their health-care packages? Or from states that bar Texas products on social grounds? This is precisely the sort of interstate economic warfare that the founders attempted to avoid by placing all power over imports across state laws in the national government.

To be sure, the Commerce Clause is by its terms a grant of power to Congress and not a restriction on the power of the States. This has made textualist judges leery of recognizing its “negative” implications. But the original understanding was that the Commerce Power was exclusive in the federal government, subject only to the police power of the states to regulate with respect to their own citizens’ health, safety, and welfare. Willson v. Black Bird Creek Marsh Co., 27 US (2 Pet.) 245 (1829). As with many of the other clauses in Article I, Section 8, the grant of power to Congress entailed the denial of that power to the states.

At the Constitutional Convention, virtually every reference to the Commerce Power pertained to its preemptive effect on what Madison called the states’ “rival, conflicting and angry regulations.” 3 Farrand 547. Before the Constitution, each state treated the commerce of other states as if it were foreign, subject to retaliatory and protectionist restrictions. Madison explained that these interferences with commerce from other states arose “from the want of Genl. Government over commerce.” 2 Farrand 441. Madison thus explained that the interstate commerce clause was not just an opportunity of Congress but “was intended as a negative and provision against including among the states themselves.” 3 Farrand 478. It historically inaccurate to think that the Commerce Clause is simply a grant of regulatory power to Congress. The states lost their plenary power to bar commerce across their borders, retaining only the police power to protect their own internal health, welfare, and safety.

If we want a change in nationwide rules for pork production, it is Congress’s job to make them. One state cannot be permitted to rule them all.

There is no need for the Supreme Court to revive the nebulous balancing tests of yesteryear, such as Pike v. Bruce Church, Inc., 397 US 137 (1970), which is much discussed in the brief. This is a case for a categorical rule: states cannot bar the movement of commerce across state lines except for the police power purposes of protecting their own residents’ health, welfare, and safety. It is no business of a state to force ethical practices on businesses in other states. Proposition 12 is a regulation of interstate commerce, not justified by the police power. If this law is upheld, we will soon see an economic war where big states will lord it over small states, destroying the constitutional common market the founders thought they created.

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