One of the most important provisions of the Constitution states that “Congress shall have power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
This provision gives the federal government vast authority over the national economy, and over the various businesses that make up that economy. It is the reason why landmark federal laws ranging from the minimum wage, to the ban on whites-only lunch counters, to much of Obamacare, are allowed to exist.
This constitutional provision, known as the “Commerce Clause,” does not simply empower Congress to regulate interstate and international trade, and in effect, the national economy. It’s also long been understood to prevent states from enacting laws that significantly impede free trade throughout the Union.
As the Supreme Court explained in Hughes v. Oklahoma (1979), the Commerce Clause addresses “a central concern of the Framers that was an immediate reason for calling the Constitutional Convention”: the Framers’ belief that “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.”
Which brings us to National Pork Producers Council v. Ross, a case the Supreme Court will hear on Tuesday. In that case the pork industry accuses California’s voters of trying to impose their own food policy preferences upon the nation as a whole, in violation of the Constitution’s safeguards against allowing one state to interfere with the nation’s economy as a whole.
In 2018, California enacted Proposition 12, a ballot initiative that imposes some of the strictest animal welfare standards in the country upon certain farmers. Of particular relevance to the Pork Producers case, Prop 12 forbids pork farmers from confining a breeding sow “with less than 24 square feet of usable floor space per pig.” And it forbids the sale of any pork in California that was produced by a farm that did not comply with this rule.
Trade organizations representing the pork industry sued, claiming that Prop 12 will impose high costs on farmers in all 50 states, and drive up pork prices nationwide. Among other things, they argue that it is “impracticable” for the industry to track in advance which cuts of pork will ultimately be sold in California, so pork farmers everywhere in the country will need to change their operations so that all of their meat complies with Prop 12.
And in order to comply, the pork industry claims, these farmers will “need to spend “$293,894,455 to $347,733,205 of additional capital in order to reconstruct their sow housing and overcome the productivity loss that Proposition 12 imposes.” Ultimately, the pork producers argue that Prop 12 will “increase farmers’ production costs by over $13 per pig, a 9.2% cost increase,” and those costs will need to be passed on to the consumer.
It’s unclear whether these dire predictions will actually become a reality, and key figures within the pork industry have, at times, seemed to contradict the more alarmist positions taken by the industry’s lawyers. Hormel Foods, for example, put out a statement saying that it has “confirmed that it faces no risk of material losses from compliance with Proposition 12.” Similarly, Tysons Food CEO Donnie King said in a 2021 interview that, while Prop 12 is “not something we were excited about,” his company can “certainly provide the raw material to service our customers in that way.”
Nevertheless, the pork producers’ legal position is that Proposition 12 violates the Constitution’s guarantee that one state will not interfere too much with the rest of the nation’s markets.
These sorts of lawsuits, which lawyers refer to as “Dormant Commerce Clause” suits, rarely prevail. But the pork producers do raise an unusually strong case under some of the Supreme Court’s caselaw, assuming that they can prove many of their dire economic predictions about Proposition 12’s impact.
At the same time, there is a very good reason why the Court has historically been reluctant to strike down state laws that interfere with the economy in other states. In a modern, integrated economy, virtually any state law will have some economic impacts across a state’s borders. If the Court hands down a ham-handed decision in Pork Producers, it could call into question hundreds or even thousands of state laws throughout the country.
What’s at stake in Pork Producers
Republican appointees have a supermajority on the current Supreme Court, so lawyers advocating for conservative policy outcomes frequently file briefs proposing sweeping, avulsing changes to federal law — before taking on a more measured and reasonable legal argument near the end of their brief.
The pork industry’s brief in Pork Producers fits this pattern. Much of its brief calls for broad new limits on a state’s ability to enact laws with “extraterritorial” effects — meaning that the law’s economic impacts are felt outside the state. Indeed, at one point, the pork producers suggest that “a State may not enact laws that have the practical effect of controlling conduct outside that State’s borders.”
If the Supreme Court were to embrace such an extreme rule, then the United States might as well give up on the project of state lawmaking altogether. Nearly any state law will have some impact on the economy in other states.
Take, for example, the ongoing debate about whether states should legalize recreational marijuana. In my home state of Virginia, people over the age of 21 may lawfully possess up to an ounce of marijuana in public. But marijuana possession is typically illegal just across the border in North Carolina.
Yet, as the Supreme Court explained in Gonzales v. Raich (2005), one state’s marijuana laws necessarily impact the national market for this drug. Increased marijuana production anywhere in the country “has a substantial effect on supply and demand in the national market for that commodity.” Similarly, by banning recreational marijuana, North Carolina lawmakers discourage hardworking Virginia cannabis farmers from growing product that can be sold in North Carolina, diminishing those farmers’ profits in the process.
Nevertheless, it is widely accepted that each state may decide whether or not to ban marijuana — or a myriad of other products they deem harmful — without running afoul of the Dormant Commerce Clause. California, for example, recently banned 24 ingredients from cosmetics and personal care products, because it believes them to harm people’s health.
Similarly, imagine that California enacted a new law which appropriates funding to hire 10,000 new public school teachers in the state. This law would also have extraterritorial effects. Among other things, because California competes with other states to hire teaching talent, this new appropriation would place upward pressure on teaching salaries throughout the country. But there’s no serious argument under existing law that hiring new teachers violates the Dormant Commerce Clause.
Again, the point is that a strict ban on state laws that have “the practical effect of controlling conduct outside that State’s borders” could potentially prohibit states from legislating altogether — especially if the phrase “practical effect” is read broadly. A state law raising its hourly minimum wage, for example, could have the practical effect of making businesses in counties across the state line raise their wages too. Name any state law, and it’s probably possible to identify some way that it shapes conduct outside of that state’s territory.
To win their case, in other words, the pork industry should have to do much more than show that Proposition 12 impacts how pork is produced in other states. If that were enough, virtually any state law would be unconstitutional.
The strongest case against Prop 12
At the same time, however, there need to be some limits on one state’s ability to pass laws that impact nonresidents of that state. In 2021, for example, Texas enacted a law that effectively forces major social media platforms like Twitter and Facebook to stop removing content they deem offensive — including content from Nazis and white supremacists, as well as many forms of targeted harassment.
While this law theoretically only applies to Texas residents and people and businesses who take certain actions in Texas, social media companies would likely find it very difficult to identify which of their users are subject to the Texas law — and therefore would have no choice but to impose Texas’s rules on everyone who uses their site.
Even setting aside the fact that this Texas law violates the First Amendment, why should Texas get to decide for the entire country what sort of content appears on Twitter? There’s something profoundly undemocratic about allowing a single state to decide this question for the other 49 states, as most Americans do not get to vote for members of the Texas state legislature.
If the pork producers are correct about the economic impacts of Proposition 12, then a similar argument could be applied to California’s law. Why should the voters of California get to pass a law that might drive up the price of bacon in Florida by nearly 10 percent?
The Supreme Court’s decision in Pike v. Bruce Church (1970) established that a state law should be struck down if it imposes a burden on commerce in other states that “is clearly excessive in relation to the putative local benefits.” And the pork producers make a reasonable argument that Prop 12 is the rare state law that runs afoul of Pike. (Notably, the Biden administration also filed a brief arguing that Pike requires the Court to strike down Prop 12.)
The argument goes something like this: The pork producers claim that 99.87 percent of the nation’s pork production occurs outside of California, but Prop 12 will nonetheless force those out-of-state producers to comply with California’s animal welfare standards. They also argue that Prop 12 does nothing to protect the health and safety of actual California residents. And they bolster this claim by pointing to the California Department of Food and Agriculture’s own conclusion that it could not “confirm, according to its usual scientific practices” that Prop 12’s sow confinement rules “reduce the risk of human food-borne illness.”
Assuming that all of this is true, that would mean that Prop 12 does very little to actually improve the lives of Californians, while simultaneously imposing tremendous costs on pork farmers in other states.
To this, California offers two responses. One is that, even if Prop 12 does not advance any public health goals, the state still has a legitimate interest in “prohibiting the in-state sale of animal products that the voters view as morally objectionable.”
But this argument is hard to square with Lawrence v. Texas (2003), the landmark civil rights decision striking down a Texas ban on “sodomy.” Among other things, Lawrence held that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”
To sustain a law, a state must offer a justification that goes beyond “we banned this practice because we think it is bad.”
California’s strongest legal argument, meanwhile, is simply that Courts should be very cautious about striking down state laws that have extraterritorial effects. As Justice Antonin Scalia warned in a 1987 opinion, the question of whether a particular state law imposes a burden on commerce that is “clearly excessive in relation to the putative local benefits” is the sort of inquiry that “is ill suited to the judicial function and should be undertaken rarely if at all.”
Judges simply are not very good at tracing out the economic impacts of a particular law. Or at predicting just how much the price of ham will go up in Wisconsin if California imposes new burdens on pork producers. And, for all the reasons explained above, it’s not clear where to draw the line between an ordinary law with extraterritorial effects — such as North Carolina’s marijuana ban — and a more extraordinary law that has too much impact on other states.
In any event, the Court’s current majority has not shown much sympathy for arguments that judges should be cautious about poking around in policy areas that they barely understand, so California may face an uphill climb in the Supreme Court if its best argument is that the judiciary should exercise restraint.
But whatever the Court decides in Pork Producers, we should hope that it shows the same trepidation about striking down laws with extraterritorial effects that Scalia articulated in the 1980s. The United States has an integrated economy, and virtually any state law will have at least some marginal effect on commerce in other states.
If this Supreme Court starts policing those laws, it will find it difficult to figure out where to stop.