National Pork Producers Council v. Ross (2023)

Download the edited version from the 2023 Barnett-Blackman supplement.

I have now finished reading the Court's very-fractured decision in National Pork Producers Council v. Ross. I have also edited the case for the Barnett-Blackman casebook supplement. (I find that distilling a case down to its essence is the quickest way to figure out what is important and what is unimportant). I have shared a link to the edited case here.

I will have much more to say about this case. What would Mr. Herbert Spencer think?

Comments

[apedad]

I don’t like Justice Kavanaugh’s discussions about the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

In each paragraph he ends with, “I do not take a position here on whether such an argument ultimately would prevail. I note only that the question warrants additional consideration in a future case.”

Well if they are factors in this case then why don’t you consider them now?!?

And if they’re not factors in this case then why did you bring them up?

[Dan Schiavetta]

He wants to change the law, and is setting the stage for a better case in which to do it.

[apedad]

So, not doing his job.

[David Nieporent]

Well if they are factors in this case then why don’t you consider them now?!?

Because the parties didn't argue them.

[Dilan Esper]

I think that's right, formally.

But I think Kavanaugh should probably do a little more than spitball here. There's more to constitutional law than "I have a great idea, let's use THIS clause".

A good comparison would be to the recent case where Thomas advocates using the Citizenship Clause to justify Bolling. He's wrong on the merits (he is trying to deny legal equality to foreigners, which is terrible and xenophobic), but I'll say this for Thomas-- he sets his argument out. He says why he thinks it would work. He cites prior cases and legislative history. Etc.

Whereas Kavanaugh is like "wouldn't it be neat if we used all these other constitutional provisions?", without taking even baby steps to show whether it would even work.

[apedad]

Then why did he address the issues at all?

[CJColucci]

I will have much more to say about this case.

Promise or threat?

[bernard11]

I find that distilling a case down to its essence is the quickest way to figure out what is important and what is unimportant.

Those sound like the same thing to me.

Isn't figuring out what's important or not the essence of the case?

[David Welker]

It would be interesting to compare Blackman’s summary to one by ChatGPT or a competitor.

I suspect that these tools would all summarize differently, but in a likely surprisingly useful manner.