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The Dormant Commerce Clause?  In a Pig’s Eye!
David Weisberg

Justice Scalia wrote, in his dissent in Comptroller of Treasury of Maryland v. Wynne (2015), that the negative or dormant Commerce Clause is “a judicial fraud.”  I’m not sure that’s correct in every case, but I know that jurisprudence has run amuck when the dormant Commerce Clause is deemed to be decisive in a case in which that Clause, on proper analysis, is entirely irrelevant.  This is the level to which we seem to be sinking in National Pork Producers Council v. Ross.     

California’s citizenry approved Proposition 12, which bars the sale of pork products if the meat comes from pigs that weren’t raised in individual pens with a minimum square footage.  It is undisputed that this requirement was motivated by humane considerations of animal welfare—pigs raised in more confined conditions than California allows yield meat that is healthful for human consumption. 

California represents a huge market for pork products; most of those products originate outside the State.  Out-of-state pork producers do not want the added expenses entailed by California’s regulations, nor do they want to lose access to that market.  They have therefore sued, alleging that Prop. 12 violates the dormant Commerce Clause.

The analysis supporting the plaintiff pork producers is set forth in an article by Prof. Michael McConnell, noted by Prof. Ramsay on this blog.  Prof. McConnell writes that California’s law “should be recognized for what it is: an attempt at extraterritorial regulation in violation of the Commerce Clause.”  There is currently no federal regulation of the size or structure of pens in which pigs must be raised, so Prop. 12 would purportedly violate, more specifically, the dormant Commerce Clause.  Although I agree that Prop. 12 is invalid as applied to out-of-state producers, I think the Commerce Clause is entirely irrelevant to that conclusion. 

Suppose Californians approved a referendum punishing jaywalking.  Suppose further that California deemed that prohibition to apply extraterritorially throughout the United States.  Thus, if a resident of Iowa jaywalked, and that person subsequently traveled to California, and it could be proven that that person had jaywalked in Iowa, he or she would be punished in California.

California obviously may not punish someone who resides in another State for behavior in another State.  And this has nothing to do with violating a dormant or active Commerce Clause—not even the most fervent New Dealer would contend that jaywalking in Iowa affects interstate commerce.  Rather, the limitation on California’s extraterritorial authority stems, I believe, from the fact that, to the extent the States continue to be sovereigns, they are equal sovereigns, with no State more dominant than any other State.  Permitting one State to regulate extraterritorially behavior in another State elevates one State over another; permitting every State to regulate behavior in every other State guarantees chaos.

Back to pig-pens.  California seeks to enhance the well-being of pigs, wherever those pigs are located.  But Prop. 12 does not command out-of-state farmers to provide adequate pens; the proponents of Prop. 12 undoubtedly were advised that such direct extraterritorial regulation would be invalid.  So, the proponents instead chose to regulate out-of-state conduct indirectly by effectively barring out-of-state farmers from the lucrative California market unless they’ve complied with California’s pen requirements.  Commercial pressure, rather than direct commands, would compel extraterritorial compliance.

The key to a proper resolution of National Pork is a principle derived from both common sense and the Court’s own precedents, and one entirely unrelated to the Commerce Clause.  That principle is: “[W]hat cannot be done directly cannot be done indirectly.”  Cummings vMissouri, 71 US 277, 325 (1867).  The subject-matter of Cummings (bills of attainder and ex post facto laws) is entirely unrelated to National Pork.  But the principle asserted by the Court would seem to be both timeless and generally applicable.  In fact, Cummings was cited this year for that very principle; seeDenezpi vU.S., 596 US __ (2022) (Gorsuch, J., slip op., 10).

Just as the prohibition against extraterritorial application of a State’s laws bars California from punishing Iowans who jaywalk in Iowa, California may not punish Iowa farmers who raise pigs in pens that do not comply with California’s regulations.  But, if California may not directly punish those Iowa farmers, neither (per Cummings) may it indirectly punish them.  Proposition 12 is transparently designed to punish indirectly out-of-state farmers who violate California’s pig-pen regulations.  Because what cannot be done directly cannot be done indirectly, California cannot bar the sale of pork products imported from other States, whether or not the pigs were raised in conformity with Prop. 12. 

The foregoing argument makes no reference whatsoever to the Commerce Clause; any reference to that Clause simply introduces confusion.  The confusion is manifest when one considers that, in its grant of certiorari in National Pork, the Court included the question whether the allegations of out-of-state pork producers “state a claim under Pike v. Bruce Church, Inc.”  In Pike, Arizona sought to compel an Arizona farm to crate and label its cantaloupes in Arizona, with labels identifying them as Arizona products, before sending them to market in California.  The farm had formerly been sending uncrated cantaloupes to its nearby packing facility in California, and it did not want to build another packing plant in Arizona.  The Court held that Arizona had violated the Commerce Clause in seeking to compel the farm to crate and label the fruits in Arizona.

In Pike, Arizona was seeking to change behavior of persons acting within the State to prevent certain products from leaving the State.  In National Pork, California is clearly seeking to change behavior of persons acting outside the State to prevent certain products from entering the State.  Therefore, the controlling facts in Pike are exactly the reverse of those in National Pork.  Why the Court—or, at least, the members of the Court who voted for certiorari—thinks that Pike is an important precedent in considering National Pork is, to my mind, a mystery.