The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court granted certiorari in three cases. One of the cases, National Pork Producers Council v. Ross, concerns the extent to which the Dormant Commerce Clause limits state regulations that have alleged extraterritorial effects. As a consequence, this case could have implications far beyond the specific regulations concerning the sale of pork products in California.
NPPC v. Ross involves a challenge to California's Proposition 12, which bans the sale of animal products from animals that were raised in conditions contrary to the proposition's standards for animal confinement. Because many animal products sold in California are produced in other states, the petitioners claim that this proposition violates the Dormant Commerce Clause.
Proposition 12, the petitioners charge, is prohibiting the sale of products not due to any characteristic of the products themselves, but rather based upon the conduct of the producers in other jurisdictions. As the petitioners see it, this imposes excessive burdens on interstate commerce and amounts to unconstitutional "extraterritorial" regulation, as it represents an effort by California to impose its policy preferences on how farm animals are treated in other jurisdictions. There would be no issue were the California law to merely specify how farm animals are treated within the state, but because the costs of complying with California's standards would only be borne by in-state producers, they might be placed at a competitive disadvantage.
This case could have far-reaching implications, and not merely for agricultural law. State energy and climate regulations have also been subject to Dormant Commerce Clause challenge. If the Supreme Court were to conclude Proposition 12 is unconstitutional, it may also cast doubt on state laws that regulate fuel sources based upon their life-cycle carbon emissions, for example.
This case is also interesting because it is unclear where the current justices are on Dormant Commerce Clause questions. Business groups and some conservatives like the doctrine, as it clears away regulatory obstructions to interstate commerce, which was part of the purpose of replacing the Articles of Confederation with the Constitution in the first place. Others, however, believe the doctrine is an atextual judicial invention, and believe it should be applied sparingly, if at all. Justices Thomas and Gorsuch are almost certainly in this latter camp, but the other conservative justices might not be. This case may also give us an early glimpse of how Justice Ketanji Brown Jackson approaches federalism and structural constitutional questions.
Were that not enough, one must remember the case concerns bacon -- and everything is better with bacon.