The Territoriality Principle Without a Clause

A brief comment on National Pork Producers v. Ross

It is a basic, intuitive, premise of our federal system that each state makes law for that states and not the other states. To steal an example from Professor Don Regan, even if the state of Michigan had a very strong anti-smoking policy, it could not ban the manufacture of cigarettes in North Carolina, only the importation of those cigarettes into Michigan.

And yet, it is not clear what actual part of our positive law enacts that premise. There is no Territoriality Clause in the Constitution, no Territoriality Statute, and arguments based on other more esoteric sources of law (general law?) raise deep questions of their own. Moreover, as every conflict of laws scholar knows, the basic premise of our federal system is frequently denied in practice -- states regularly apply their own law to conduct that took place in other states, with relatively little shame or theoretical explanation. And if there is no Territoriality Clause in the Constitution, maybe they are allowed to do that.

On occasion, the courts get so flummoxed with this that they temporarily press other constitutional clauses into temporary active serve as a Territoriality Clause. The Due Process Clause is occasionally asked to do this work, for instance (as it as asked to many constitutional odd jobs). More promisingly, several cases had asked the so-called dormant Commerce Clause to do this work as well. If states cannot discriminate against interstate commerce, the logic went, then they also cannot simply regulate out-of-state commerce either.

No more. In today's decision in National Pork Producers v. Ross, a majority opinion by Justice Gorsuch upholds California's prohibition on pork produced in inhumane conditions, even though that production generally occurs outside of California. In doing so, the Court pretty squarely rejects the idea of territoriality review under the dormant Commerce Clause, despite several cases that had generally been read this way (and excerpted in conflict of laws casebooks this way); and even the partly dissenting judges appear to agree with him on this point. The dormant Commerce Clause will no longer serve as a Territoriality Clause.

But at the same time, even Justice Gorsuch's opinion cannot give up on the idea that something in the Constitution must do the work of a Territoriality Clause. In distinguishing away yet another one of the Court's territoriality dormant Commerce Clause cases, the Court writes:

Beyond Baldwin, Brown-Forman, and Healy, petitioners point to Edgar v. MITE Corp., 457 U. S. 624 (1982), as authority for the "almost per se" rule they propose. Invoking the dormant Commerce Clause, a plurality in that case declined to enforce an Illinois securities law that "directly regulate[d] transactions which [took] place . . . wholly outside the State" and involved individuals "having no connection with Illinois." Id., at 641–643 (emphasis added). Some have questioned whether the state law at issue in Edgar posed a dormant Commerce Clause question as much as one testing the territorial limits of state authority under the Constitution's horizontal separation of powers. See, e.g., D. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 Mich. L. Rev. 1865, 1875–1880, 1897–1902 (1987); cf. Shelby County v. Holder, 570 U. S. 529, 535 (2013) ("[A]ll States enjoy equal sovereignty"). But either way, the Edgar plurality opinion does not support the rule petitioners propose. That decision spoke to a law that directly regulated out-of-state transactions by those with no connection to the State. Petitioners do not allege those conditions exist here. To the contrary, they acknowledge that Proposition 12 regulates only products that companies choose to sell "within" California. Cal. Health & Safety Code Ann. §25990(b).

There is a LOT to unpack here.

It is true that the real extraterritoriality cases involve "directly regulat[ing] out-of-state transactions," not doing so indirectly as in National Pork Producers. But what is the Court's view of those direct regulations? Are they unconstitutional? And if so, why?

The Court's answer in this footnote is to move those cases away from the dormant Commerce Clause doctrine and instead into the "territorial limits of state authority under the Constitution's horizontal separation of powers." But … what are those? What constitutional provision encodes "the Constitution's horizontal separation of powers"? Or is Justice Gorsuch (Justice Gorsuch!?) endorsing some kind of free-floating unwritten constitutional law that is not contained in a specific constitutional provision?

And what does the answer to this have to do with Shelby County v. Holder's famous but controversial statements about equal sovereignty? Is the idea that the missing Territoriality Clause will now be located inside the Equal Sovereignty Clause (which is, alas, also missing)? Or is the idea that if the Court can find a free-floating Equal Sovereignty Principle Without A Clause, it may equally do so for a Territoriality Principle Without A Clause?

On the one hand, the Court's desire to limit the dormant Commerce Clause doctrine and avoid getting in to intractable questions of territoriality reflects commendable restraint. On the other hand, its apparent belief, reflected in this footnote, that those intractable questions of territoriality will still be dealt with under the Constitution, under the unwritten "territorial limits of state authority under the Constitution's horizontal separation of powers," does not inspire confidence that the Court has thought this one all the way through.

[In my view, the territorial limits on the states were probably originally understood as a subset of the law of nations, as applied to the U.S. states, and perhaps then better understood as a form of pre-Erie general law. But if that is their status it is hard to know what to make of them in a post-Erie world, and hard to figure out whether and when states have the power to disregard them. And it is hard to know what to make of various constitutional rules, from Due Process to the Faith and Credit to the Extradition Clause and maybe even the Commerce Clause that seem to presuppose such limits even if they do not enact them.]

I have called the Court's occasional, but inconstant, temptation to constitutionalize such principles "the Temptation of the Dark Side" So I will ask again a version of the question I asked there. If we are going to have "territorial limits on state authority under the Constitution's horizontal separation of powers," can we at least use them consistently, rigorously, and for good, to constrain a state's choice of law in cases implicating conduct in other states? And if not, can we be clearer and more definitive about the lack of constitutional limits in this area?

Comments

[The Turtle Dove]

The Federal Constitution doesn't ordain or establish state courts. State courts, even if given plenary authority by the state, can't reach beyond the powers possessed by the governments that created them. The gardener doesn't need to decide if the annual plants are to be annual or perennial. If they don't show up in the spring, they simply didn't have it in them.

Dormant Commerce, Dean Milk and its progeny, simply teaches that the states can't conspire against each others' businesses. And keeping kosher or halal isn't a conspiracy against the industrial abbatoirs.

Mr. D.

[Dr. Ed 2]

It will be interesting when Iowa retaliates and imposes a burdensome obligation on California agriculture. A handwashing requirement on those picking lettuce comes to immediate mind.

[Krayt]

It’s interesting he mentions Michigan because decades ago, the SC threw out a Michigan law on sausage purity, saying it was a cover for hurting competion of out of state producers.

So I suppose if your reasons are found to be pure…

Anyway, as usual, supine, cowardly Congress could do its job and address it one way or the hahahaha.

[apedad]

As if CA gives a shit what IA thinks.

IA population: ≈ 3.1M
LA population: ≈ 3.9M

[Kleppe]

Now compare the numbers of homeless people, drug addicts, violent criminals, child sex predators, single-parent households, and untreated mental defectives. California is a shit hole and cramming more people into it shouldn't be an accomplishment, it should be a source of permanent shame.

[bevis the lumberjack]

You’re forgetting - these laws affect everyone everywhere. When Californian produce becomes prohibitively expensive to grow and sell, the population disparity won’t matter.

[Bubba Jones]

That would be fine if they impose the same hand washing requirement on all producers.

[mydisplayname]

The Constitution does not mandate practicality or sensibility. The practical solution to the Pork Producer's particular problem can be the PornHub solution: if a state creates a law that unduly encumbers your business, make certain that the law is vigorously enforced (even if by you yourself) and it is likely to generate backlash against the law. PornHub is demonstrating this nicely in Utah, where vigorous enforcement -- by PornHub -- of an ill-conceived online ID statute is rapidly increasing backlash against the statute (and other tension within the state).

Put another way, prohibition seldom works.

Californians want bacon and want happy pigs [slaughtering sad pigs would just be wrong, I suppose]. Stop selling bacon to Californians and the price of and craving for bacon will rise to a level that make porcine happiness a secondary concern. Yes, this involves a temporary loss of revenue: no pain, no gain.

As to the Constitutional questions, I agree that numerous facets remain to be decided.

[AmosArch]

California is way too big for anyone’s good. There are at least 3 different states not only in terms of culture but geographically. Where are the people who argue for DC statehood when it comes to SF/LA basically nullifying the voice of everyone else in California?

[BravoCharlieDelta]

They don't care because it's their opposition being disenfranchised.

[Brett Bellmore]

They're suggesting a gerrymandered breakup of California to make sure that Democrats control all the pieces, that's where they are.

[Krychek_2]

Are you sure you want California sending six Democrats to the Senate instead of two?

[David Nieporent]

Where are the people who argue for DC statehood when it comes to SF/LA basically nullifying the voice of everyone else in California?

I love how you conflate not getting to vote with not winning a vote.

[juris imprudent]

Not winning a vote versus getting to vote – wasn’t that the basis of the NC gerrymandering decision that was recently mooted?

[AmosArch]

A sheep is equally dead whether they were outvoted by 2 wolves for dinner or the 2 wolves voted by themselves.

[jb]

Pretty weird to compare people who literally have no representation at all with people who get a representative but happen to be in the minority of the voters for some set of elections.

And of course the "nullification" goes both ways. I'm sure the people of Austin or Salt Lake City or Des Moines would prefer that their states elected Democrats, but all the farmers and ranchers are basically deciding who represents them instead.

[AmosArch]

Which is why we should increase local autonomy as much as possible.

[Bubba Jones]

The breakup always fails when Northern California discovers they are expected to keep SF.

[BravoCharlieDelta]

Frankly,

Big Food is an unmitigated disaster. If this is the first domino in restoring our food system, then good.

But, since this came from Democrats and California, we know there is evil intent. If I were to guess, they were in cahoot with some WEF/Jew types and there will be some pushing of plant-based “bacon”, which will just kill us faster.

[David Nieporent]

Big Food is an unmitigated disaster.

That doesn't even rise to the level of gibberish.

[Brett Bellmore]

I've long thought that there's a sort of Godel's incompleteness theorem of law. That it's actually categorically impossible for a system of law to be complete and non-contradictory. Some things will always have to be left unstated.

The founders were not attempting to create a constitution for people who had just come out of a coma with no memories, and only the capacity to read. They were attempting to create a constitution for reasonable people.

So explicitly stating the obvious, such as that a state's laws do not reach beyond its own borders, was not even considered. It would have been viewed as fatuous. Redundant, even, because the people you had to explicitly state THAT sort of thing for probably wouldn't care that you'd stated it, they'd find some excuse to ignore it.

So, "If we are going to have "territorial limits on state authority under the Constitution's horizontal separation of powers," can we at least use them consistently, rigorously, and for good, to constrain a state's choice of law in cases implicating conduct in other states?"

Nah, not going to happen. To do that, they would have to admit that these limits are nowhere grounded in the text of the Constitution, and having so admitted, they would then feel barred from imposing them, because they want their rulings to actually be grounded in that Constitution, not just, "We're not madmen here, some things actually do go without saying."

[Sarcastr0]

You, the one who insists on logical consistency to both law and ethics, have sure turned on a dime, now insisting we not even bother to justify or cabin anything?

Baude is right, and you’ve gone from one bad idea extreme to the other.

I guess you can become a fan of Justice Kennedy now.

[Brett Bellmore]

I get that some people don't understand that logic itself says logic can't answer all questions, but that this isn't the same as logic not answering most questions.

[Dilan Esper]

It went without saying at the time of the founding that women had the right to try and terminate pregnancies before quickening through the use of various self-medications. It wasn't even thinkable that a government might ban that, any more than it was thinkable that Vermont would regulate farm production in North Carolina.

I mean, I think you are actually right that some protections of the Constitution weren't said but nonetheless exist. But you don't articulate a test that gets to your preferences. Indeed, some sort of abortion rights protection, as well as a number of other substantive due process rulings you don't like, is totally consistent with the interperative framework you are putting forward.

[Toranth]

It went without saying that pregnant women could terminate their pregnancy before they knew they were pregnant?

You do you ever go back and try to read what you write? Or does that actually make sense in your head?

[Absaroka]

Quickening is twentyish weeks (googling finds numbers from 12 to 25 weeks), so a minimum of 3 and max of 6 months. So women are going to notice some missing periods well before quickening.

[DJK]

I've never really been troubled by the incompleteness theorems. They are a necessary byproduct of assuming that all statements are necessarily true or false. Yet we know that the latter proposition is simply false (see the liar's paradox and all similar self-referential statements). Once you've given up the notion of universal two-value logic, you've already given up way more than the incompleteness theorems require. But you can still say that most statements are true or false. Similarly, you can still say that logic will get you pretty far.

[juris imprudent]

Law has never been a formal system.

[Brett Bellmore]

Yeah, as I've said, while logic actually does apply to all domains of reasoning, in some domains people are, non the less, unembarrassed to be illogical.

[DJK]

Insofar as you use an axiomatic approach to law, the incompleteness theorems REQUIRE it to be incomplete, inconsistent, or both. The incompleteness theorems apply to ANY system of logical inference with a complexity that equals or exceeds basic arithmetic.

[The Turtle Dove]

Two very different things: completeness and logical coherence. Completeness begins in modern times with the Code Nap, which by its assertion of completeness foreclosed systemic commentary. In places where commentaries were allowed to be published, and in law schools where it was taught, it had to be taught strictly in the published order, and it had to be emphasized that every eventuality had been accounted for.

Systemic logic and coherence, in a way, are the patterns of thought that emerge when things aren’t already accounted for.

See the debate between Thibault (codification) and Savigny (historicism/explanation) after the Napoleonic wars for an excellent treatment of the codification debate. That debate is to European jurisprudence courses what formalism/realism is to American jurisprudence courses.

Mr. D.

edit: typo

[The Margrave of Azilia]

There’s nothing in the Constitution requiring that river boundaries between states be defined by a thalweg line, but the Supreme Court applies that rule anyway.

In their relations with each other, except as limited by federal law, I would think the states are bound by the law of nations, which has an authority independent of the Constitution (though it can be superseded by it in specific cases).

The principle of territorial sovereignty is part of the law of nations.

So if a state thinks California is violating its sovereignty it can go to the Supreme Court and invoke the law of nations.

[Martinned]

You do realise that international law does not, in fact, require river boundaries to be based on the Thalweg, don't you? This kind of nonsense takes up a lot of the ICJ's time. Sometimes the judgment comes out in favour of the Thalweg method, sometimes it doesn't. It depends on the circumstances.

https://opiniojuris.org/2021/11/26/prospects-for-judicial-settlement-of-the-danube-border-dispute-between-croatia-and-serbia/

[The Margrave of Azilia]

OK, excellent, so the ICJ doesn’t apply that principle in every case. That doesn’t bind the U. S. courts. U. S. recognition of the ICJ is limited.

Or, if the ICJ is right, the question of boundaries, including river boundaries, remains an issue of the law of nations, my broader point.

[The Margrave of Azilia]

"...In Louisiana v. Mississsippi...the court applied the doctrine of *thalweg* to determine that the boundary between those states, under the statutes admitting them, lay not along the geographic middle of the Mississippi River but along the middle of its main chain of navigation, noting that the doctrine had 'roots in international law.' The Court applied this doctrine, however, as a default rule subject to change by Congress."

William S. Dodge, *Customary International Law in the Supreme Court, 1946-2000," in Sloss, et. al. (eds.), International Law in the U. S. Supreme Court: Continuity and Change (New York: Cambridge University Press, 2011), 358.

[ReaderY]

I think one of the plurality subsections of Section IV provides the best answer to Professor Baude’s question of why the “equal sovereignty” language in Shelby County is relevant to this analysis. If impact on other states could be the basis for invalidation under the Dormant Commerce Clause, then cost/benefit balancing would leave small states free regulate what products get sold in their states to their hearts content, as the loss of their market wouldn’t cost outside producers much, while large states couldn’t, as the loss of their markets would cost outside producers much more. Since applying a balancing approach would result in the states having unequal rights and powers to regulate for their citizens, it would violate their equal sovereignty. That’s what makes the Shelby County quote relevant.

[ReaderY]

This argument that applying Pike balancing would violate the equal sovereignty of the states is in Part IV-D of Justice Gorsuch’s opinion, joined only by Justices Thomas and Barrett.

[Yogis_dad]

No territoriality clause? That's what the Interstate Commerce clause actually meant. Its sole purpose was to enable Congress to prevent states from erecting barriers to trade among the states and usurping the federal power to limit trade across the national border. All the other "jurisprudence" on the subject is erroneous.

[David Nieporent]

ts sole purpose was to enable Congress to prevent states from erecting barriers to trade among the states

It's rather weird to take a grant of power to regulate interstate commerce and interpret it as a grant of power to prevent states from affecting interstate commerce. If their goal was to forbid states from erecting trade barriers, then why didn't they say so, and put it in Article I, Section 10, which expressly dealt with limitations on state power (including, relatedly, forbidding states from imposing tariffs on interstate commerce), rather than Article I, Section 8, which was the grant of powers to Congress?

[Alpheus W Drinkwater]

This post reminds me of a point made by William Treanor in his excellent paper on the Constitutional Convention's Committee of Style. The framers just weren't textualists in the modern sense, with the apparent exception being Gouverneur Morris, whose work on finalizing the text takes on an oversize importance today. The framers and ratifiers just didn't seem to think everything had to be spelled out explicitly in the text.

I hope I'm not grossly misstating Prof. Treanor's writing.

[Alpheus W Drinkwater]

"Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution". 2019

[Brett Bellmore]

Again, the argument here is that they're not regulating the product, they're regulating the conduct. While the product may be sold in California, the conduct simply happens elsewhere.

As I've said before, what part of this reasoning wouldn't allow California to attempt to impose minimum wage laws on other states? Or their own state law requiring that employers warn employees when ICE is planing to visit?

[Old Smokin' Egg]

Could California enact a total ban on the sale of pork within the state, assuming that the legislatue and/or the electorate favored it? I see no reason why not—a number of states already ban the sale of horsemeat for human consumption, and as far as I know there've been no Constitutional challenges to these bans.

But the economic consequences of such a total ban for the pork industry would be even heavier than those of the California law under discussion. Given that, I fail to see where the pork producers have a valid argument in this case.

[Brett Bellmore]

The interstate commerce clause says,

"to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

It treats states as equivalent to foreign nations for the purposes of federal regulation of commerce, anyway.

[The Margrave of Azilia]

"Are states nations?"

This must be the slow class.

Let me repeat:

"In their relations with each other, except as limited by federal law, I would think the states are bound by the law of nations, which has an authority independent of the Constitution (though it can be superseded by it in specific cases)."

[Rossami]

re: "Are states nations?"

Yes in the very real and original legal sense that they are independent sovereigns. The United States is an aggregation of nations with its own sovereignty just as the European Union is.

[Brett Bellmore]

So are gas stoves and ICE cars, but I don't notice Congress uniting to tell Biden to back off on trying to regulate them into non-existence.

[The Margrave of Azilia]

If you want a Constitutional text, why not the one requiring the federal government to protect the states against invasion?

[AmosArch]

If you're in DC you only meaningfully affect some smalltime offices nobody cares about. If you're in California as a conservative you only can meaningfully effect a few smalltime offices nobody cares about.

Seems pretty equivalent to me.

[AmosArch]

Being in proximity of the Federal government is arguably a much more powerful way to influence it than the next to zero influence California conservatives have on the major offices in the state. In addition the population of DC is about 700k if you include all the rich and powerful lobbyists and pols that are definitely not disenfranchised which is a tiny fraction of the 13 million disenfranchised California conservatives.

[Don Nico]

" in CA you have some. "
Again, true but far from the whole truth.
But it does mean that I always votes for candidates who have zero chance of being elected President. They are not on enough stae ballots to have even the tiniest positive chance of have sufficient electoral votes.

[AmosArch]

In addition DC has electoral votes

[Brett Bellmore]

Technically, regulations aren't laws, either, even after they're in place. But the administration has started the regulatory process rolling, on "proposals" that will have enormous impact on products that are widely popular if the process isn't stopped.

[Don Nico]

What is your point? Unless a plaintiffs can get standing and win in a law suit - prejudiced by the Chevron doctrine - yours is a distinction without a de facto difference.

[tkamenick]

"bad idea" =/= "unconstitutional"

[David Nieporent]

As I’ve said before, what part of this reasoning wouldn’t allow California to attempt to impose minimum wage laws on other states? Or their own state law requiring that employers warn employees when ICE is planing to visit?

Maybe nothing. And?

[David Nieporent]

Um, this is offensively stupid. If you are in DC, you get 0 representatives in Congress. (Well, you get a non-voting rep.) If you are in California you get representatives in Congress. Members of Congress are not "smalltime offices nobody cares about."

[David Nieporent]

You apparently missed the replacement of the Articles of Confederation with the U.S. Constitution. I guess news travels slow where you live.

[The Margrave of Azilia]

No, they surrendered plenty of their prerogatives vis-a-vis the feds, their citizens, and even each other. But they did not give up their right to insist that each state exercise sovereignty only within its territorial boundaries.

Sheesh, there's been plenty of Supreme Court litigation over proper boundaries between states.

[Brett Bellmore]

No, what's goofy is that California is regulating the sale of a product based on the actions of somebody other than the in state seller. What's next, they ban sale of products in California that were produced using fossil fuel energy, in an effort to force other states to shut down coal power plants?

If California were an average sized state, this wouldn't be a big deal, they wouldn't have the leverage to get anybody to play ball with them; Out of state companies would just tell them to go pound sand.

The problem is they're big enough that the cost of complying nation-wide is roughly comparable to the cost of segmenting the market, so a lot of companies do play ball, and everybody nation wide ends up bearing the cost of policies their own governments didn't adopt.

And if an industry decided, "Screw it, we're just not selling to California!" there would probably be anti-trust problems.

[The Margrave of Azilia]

Because yo mama, that's why.

[The Margrave of Azilia]

Where did the thalweg line stuff come from, the Uniform Commercial Code?

[Brett Bellmore]

Again, I agreed, so I'm puzzled why you're repeating this irrelevancy.

Proposals to create regulations matter if you don't like the regulation, and that's so even if proposals to create regulations aren't laws.

Me picking up a gun < shooting you dead, but if I said I intended to shoot you dead, you'd still object when I reached for the gun.

[ReaderY]

What makes that different from Congress regulating the interstate sale of products made with child labor or whatever? Under an intermediate interpretation of the scope of the Commerce Clause, this sort of regulation happened all the time. Why should the dormant commerce clause forbid what the active commerce clause allows? If Congress can look to the receiving state as a basis for regulating, why can’t the receiving state? And if the receiving state can’t, why can’t Congress?

Maybe you think Congress should only be able to regulate the actual act of transportation, not what happens before or after. But if you concede Congress can forbid the interstate shipping of products manufactured a certain way under its power to regulate interstate shipping, it follows very straightforwardly that California can forbid the SALE IN CALIFORNIA of products manufactured the same way under its power to regulate the sale of products in California.

[Dilan Esper]

There's really nothing goofy at all about that. Seriously, over 100 years ago governments were doing that on child labor.

And I suspect if the US government decided we weren't going to purchase products made in forced labor camps in China, you wouldn't call it "goofy"; you'd think it was a proper economic sanction. Now obviously the legal issues are different economically, but I'm focusing on your calling a standard principle of ethical consumption "goofy". (I mean, I could come up with even more extreme examples involving people refusing to purchase goods from the Germans that were built in concentration camps, for instance. Would you really call that "goofy".)

This is just an example of where you, Brett Bellmore, are an extremist. You don't like the idea of California using its market power to push for more humane treatment of animals, and you don't have the votes to pass a statute prohibiting this in Congress, so you want the courts to implement your extreme pro-animal torture agenda that the rest of the public doesn't agree with.

[ReaderY]

Standing near the California-Nevada state line, I fire a gun in Nevada and kill someone in Califorrnia. Under your theory, Nevada can’t try me for murder because I didn’t kill anybody in Nevada. And California can’t because I was never in and didn’t do anything in California.

The second point is the more relevant one here. Of course California can have me extradited and try me for murder! My actions in Nevada killed a California citizen in California territory! California is absolutely entitled to protect its citizens and territory from people standing over the state line firing shots at them.

And if California is entitled to protect its citizens from the effects of out-of-state gunfire entering its territory, then it is just as entitled to protect its citizens from the effects of out-of-state cruelly-produced pork entering its territory. You may think immorally produced pork isn’t a “real” wrong or “really” harmful like killing someone. But it’s entirely for California’s citizens (I would normally say “elected representatives” but this was a ballot proposition), at any rate not federal judges, to decide what they think is “really” wrong and “really” harmful in their state.

[Don Nico]

"What’s next, they ban sale of products in California that were produced using fossil fuel energy, in an effort to force other states to shut down coal power plants?"

Indeed that is quite possible, whatever the motivations of CA 1-party rule.

[bevis the lumberjack]

California used to be good at attracting people, but they’ve pissed that advantage away. It’s currently shrinking.

[Don Nico]

"And no one is “crammed” into any state,"
True, but so far from the whole truth so as to be false.

[bevis the lumberjack]

So it’s not fair for Californians to cost non-Californians 20% extra for a commonly used product. Many people won’t be able to afford the difference. I thought your tribe cared about poor and forgotten people but apparently the priority is the self-judged virtue of upper class white folks.

And you say that laws in other places oppose costs on the rest of us, but that’s a glib generality. Bet you can’t name an example as overt as this one.

[Brett Bellmore]

Right, you're only going to be really peeved when I shoot you, you're just a bit annoyed when I state my intention to kill you, pick up the gun, point it...

What's silly is telling people not to get worked up about the administration banning this or that, just because they haven't gone through all of the steps yet.

[Brett Bellmore]

The bottom line is, you're demanding that we wait until it's too late to stop before we react.

[ReaderY]

The 9th Circuit, less than a month ago, struck down a Berkeley, CA ordinance that had the effect of doing exactly this. Berkeley’s building code prohibited natural gas hookups, effectively banning the future use of natural in homes and home appliances. But the 9th Circuit struck this law down only bcause Congress had passed a law specifically pre-empting state and local laws regulating natural gas use in this way.

If Congress had not passed a law specifically pre-empting Berkeley’s ordinance, it absolutely would have been valid.

Environmental and climate considerations create a rational basis for banning fossil fuels. General economic and social legislation requires only a rational basis to be constitutional, and that’s easily met.

[Brett Bellmore]

"FTFY. I get it, you don’t care how any product is made. A piece of paper with an out of state lottery number on it (something many states had laws prohibiting the sale of inside their states) is no different than one that has a grocery list, "

No, obviously you don't get it. You can LOOK at a piece of paper and tell whether it has a lottery number on it, or is a grocery list. That's a property of the actual paper.

OTOH, you can't tell if the guy who packed the box was right handed or left handed. That's NOT a property of the actual paper, that's just a matter of history. Objects don't carry their histories around in them as properties.

[bevis the lumberjack]

I don’t want to do anything. I’m just pointing out the huge problem with a stupid law that you seem to wholeheartedly support. They aren’t ruling themselves here, all of the operational cost and stress falls on people with no say.

Personally, I hope the pork industry holds up its middle finger to California and says “no pork for you!” but I’m not holding my breath.

You know damn well who your tribe is and to go high and mighty on the constitution and federalism is laughable. Y’all hate the first two amendments with a passion. Don’t get all preachy.

[bevis the lumberjack]

You’re missing the point. This law does not regulate the conduct of people in California. Barely any pork is produced there.

It effectively regulates the conduct of people in other states. That’s the problem.

It’s as if Texas passed a law mandating that any avocados sold in Texas and domestically produced had to be grown in trees 1000 ft apart. Californians wouldn’t like that because it would seriously impact their behavior. And businesses.

[Absaroka]

"OTOH, you can’t tell if the guy who packed the box was right handed or left handed. That’s NOT a property of the actual paper, that’s just a matter of history. Objects don’t carry their histories around in them as properties."

I'm not sure that is true, or relevant.

I don't think you can tell by inspection whether something is kosher, but it still matters whether it is.

Lots of materials for aerospace et al come with certs, and those certs matter a lot. You can't tell by inspection whether the certs are accurate.

DoD can require that all parts and materials be USA sourced, or not PRC sourced, or whatever. That matters, and is important, even if you can't tell country of origin by inspection.

[Brett Bellmore]

Generally you actually can tell, but it's destructive testing.

[The Margrave of Azilia]

It's a gap-filler when the Constitution, statutes, and treaties fail to give a clear answer to the matter under discussion.

[The Margrave of Azilia]

Sigh...if you don't know where a state's boundary is, how do you know when it's being invaded?

[Don Nico]

"If Congress had not passed a law specifically pre-empting Berkeley’s ordinance, it absolutely would have been valid. "
That is exactly my point. Berkeley could have had that measure stand EXCEPT that Congress had expressly forbidden just that kind of measure.
Once in a while, folks in the seat of government do get up off their asses.

[Absaroka]

How do you examine a roast to tell whether sirchot in the lungs?

I don't think you can verify aerospace certs by testing either, destructive or otherwise. For example, how can you tell whether this bolt was produced in Lot #87654 from Monday or lot #98765 from Friday. And you care about that, because when a part from Monday fails and you realize the substitute operator was drunk that day, you only want to do expensive teardowns to check/replace the bolts from Monday, not the ones from Friday when the regular operator was back on duty.

Most of the Monday parts may be identical to the Friday ones - the operator only nodded off during the heat treat cycle that one time. Not having to check the Friday ones is why you go to all the expense of certs.

[Dilan Esper]

Yeah. You actually can reach the result that Brett wants to reach here through balancing (see the dissents in Pork Producers!), but Brett hates balancing. So he wants to advocate a per se rule, but the per se rule he advocates (1) involves so much hair splitting that it is ridiculous and (2) basically creates a constitutional right to sell products made by slaves or children across state lines.

And all because his overarching desire is to call everyone who disagrees with him unprincipled, and to do that he has to pretend that the answers to any constitutional question are obvious.

[The Margrave of Azilia]

See below for the Supreme Court using international law, including the thalweg line, for an interstate dispute.

[Brett Bellmore]

And that's remarkably stupid, because as imbecilic as Berkley's law is, it actually IS a local regulation of conduct within their jurisdiction, and nothing more, and so properly outside federal reach.

The principle I'm putting forward here doesn't always produce results I like.

[Kleppe]

"My point is no one is "crammed" there."

I see you are unfamiliar with the reality of the housing situation in California. But yes, compared to Iowa, people are in fact "crammed" into L.A.

[Don Nico]

No, I'd be happy not voting. Don't mind rape. When you live in a 1-party state, let us know how that feels. For me, I've left CA to its own and Newsom's stupidity.
Moreover, if DiFi actually resigns, he is doubly fucked as a "black woman" has to be appointed Senator. I guess black men are only important on the basketball court or football field. In either case Newsom loses out.

[Don Nico]

"how can you tell whether this bolt was produced..."
Funny that you should bring in that example. The matter of identifying counterfeit bolts prior to use and after the fact finding that a missed identification caused a structural accident is commonplace in US industries and government project.
Where and how bolts are produced is a sometimes deadly serious business.

[Don Nico]

Why not? SF bans the sale or delivery of vapping products within its borders.