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10/12/2022

Michael McConnell on the Pig Case
Michael Ramsey

At Volokh Conspiracy, Michael McConnell (Stanford) has this guest post on National Pork Producers Council v. Ross (argued to the Supreme Court yesterday).  From the introduction:

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 notions 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 the 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.

...

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.

And in conclusion: 

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 U.S. 137 (1970), which is much discussed in the briefs. 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.

I'm generally skeptical of the dormant commerce clause doctrine, basically for reasons expressed in various cases by Justices Thomas and Scalia.  When the Constitution's framers wanted federal power to be exclusive, they said so expressly, especially in Article I, Section 9.  If states could be excluded merely by the negative implication of grants of power to Congress, it's not clear, for example, why Article I, Section 9 needed to exclude states from engaging in war.  But others with whom I hesitate to disagree, including Professor McConnell and my one-time co-author Brannon Denning, see it differently.   And if we are to have a dormant commerce clause doctrine, this seems like a good rule.  In any event, I predict it will be persuasive to the Court.