Another Voting Paradox Case (Pork Division)

The California Pork case (NPCC v. Ross) is another example of a case whose outcome conflicts with the doctrines adopted by the Court itself in its opinions.

They're at it again! (See here, here, here, here, . . . )

In the Nat'l Pork Producers Council v. Ross case, decided last Thursday, the Court has again fallen into what Steve Salop and I called, many years ago, the "Tidewater voting paradox."  Here's the lineup:

GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which
THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with
respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ.,
joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion
concurring in part. ROBERTS, C. J., filed an opinion concurring in part
and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ.,
joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.

Obviously, it's a mess, but it's a good deal more troubling than the ordinary mess.  Here's what's going on.

The case involved a dormant Commerce Clause (DCC) challenge by the Nat'l Pork Producers' Council ("NPPC") to a CA law (Proposition 12) requiring that all pork sold in CA come from pigs that were not "cruelly treated"; cruel treatment is defined in the statute, inter alia, to mean confinement in less than 24 square feet of space. The Ninth Circuit dismissed the NPPC claim for failure to state a valid claim under the DCC, and, by a vote of 5-4, the Supreme Court affirmed the dismissal.

The NPPC advanced a number of theories supporting their claim. While the "core" of the DCC is a prohibition on state laws that are "discriminatory" or "protectionist," designed to give an economic advantage to in-state businesses at the expense of out-of-state businesses, the NPPC conceded that Proposition 12 was not such a law; it treats in-state and out-of-state pork producers in precisely the same manner.

The challengers relied instead on a different thread of DCC caselaw, the so-called Pike balancing test:

In Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the Court distilled a general principle from its prior cases: "Where [a] statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits."

Three Justices - Gorsuch, Thomas, and Barrett - reject NPPC's argument, because they believe that Pike has been misinterpreted, and that it does not "authorize judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law's 'costs' and 'benefits'." That is especially problematical where, as here, costs and benefits in this case are entirely incommensurate, and cannot be "weighed" or "balanced":

Our case illustrates the problem. On the "cost" side of the ledger, petitioners allege they will face increased production expenses because of Proposition 12. On the "benefits" side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many non-economic. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way. The competing goods before us are insusceptible to resolution by reference to any juridical principle.

The task, Justice Gorsuch (quoting Justice Scalia) wrote, "is like being asked to decide whether a particular line is longer than a particular rock is heavy."

The Pike analysis, in this view, is not separate from the prohibition on discriminatory laws - it is actually a tool to detect discrimination.

Pike's "general rule" reflects a commonsense principle: Where there's smoke, there's fire. Ibid. Under our dormant Commerce Clause jurisprudence, one State may not discriminate against another's producers or consumers. A law whose burdens fall incommensurately and inexplicably on out-of-state interests may be doing just that.

Because there is no plausible argument to suggest that Proposition 12 is discriminatory, there is no need to apply the Pike test.

Two additional votes to affirm are provided by Justices Kagan and Sotomayor.  Their theory of the case is different.  In their view, the "courtroom door is open to claims [under Pike] premised on even nondiscriminatory burdens" - i.e., Pike balancing is alive and well - and courts are not "incapable of balancing economic burdens against noneconomic benefit." But the claim here fails because the harms that the NPPC alleges amount to no more than that CA has "favored one business structure" (farmers who "stringently confine pigs and processors who decline to segregate their products) over another (those who raise and trace Proposition 12-compliant pork)," and the DCC does not protect against that category of harm. The DCC "protects the interstate market from prohibitive or burdensome regulations; it does not protect particular firms or "particular structures or methods of operation."

Four Justices (Roberts, Alito, Kavanaugh, Jackson) dissented; they would hold that Pike balancing is appropriate in this case, that courts performing that balancing can weigh economic harms against non-economic benefits, and that the harms alleged by the NPPC do "plausibly allege a substantial burden on interstate commerce."

So far so good.  It looks like a straightforward 5-4 decision in CA's favor.

But then Justice Barrett does something rather curious:  having joined Justice Gorsuch's opinion eschewing Pike balancing in a case where the benefits and harms are "incommensurable," she then adds:  If the burdens and benefits in this case were not incommensurable, and the Court were to perform the Pike balancing, the harms alleged by NPPC would be sufficient to state a claim under the DCC.

The complaint plausibly alleges that Proposition 12's costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California. If the burdens and benefits were capable of judicial balancing, I would permit petitioners to proceed with their Pike claim. [emphasis added]

So where does that leave matters?

Think of it this way: After NPPC v. Ross, does the DCC permit courts to balance in-state benefits against out-of-state harms, even where the benefits and harms are incommensurable (e.g., economic vs. non-economic)? Yes 6-3 (EK, SS, and the four dissenters [JR, SA, BK, and KBJ]] vs. [NG, CT, ACB]).

After NPCC v. Ross, when courts engage in this kind of balancing, are the kinds of economic harms alleged by the plaintiff here sufficient to state a viable DCC claim? Yes 5-4 (ACB and the four dissenters] vs [NG, CT, EK, and SS]).

Uh-oh.  If those propositions of law constitute the law of the land - if the DCC permits courts to balance in-state benefits against out-of-state harms, even where the benefits and harms are incommensurable, and if, when courts engage in this kind of balancing, the kinds of economic harms alleged by the plaintiff are sufficient to state a viable DCC claim - the NPPC should win, right?  But it didn't win, because the Court engaged in "outcome-voting," and 5 Justices think the NPPC claim should be dismissed.

But given this lineup, what happens going forward? Think of it this way: Imagine a hypothetical NY law, modeled precisely on Prop 12, which prohibits the sale in NY of beef from cows that were "cruelly treated." If the National Beef Producers Council brings a DCC action alleging the same basic facts as the NPPC did here, wouldn't a court, applying NPPC v. Ross, have to find that the plaintiff has stated a valid DCC claim?  But if that's the case, doesn't that violates the (very) fundamental principle that like cases should be treated alike? Are future courts bound by the outcome in the Ross case, or by its "holdings"?

Comments

[loki13]

1. The Kagan/Sotomayor concurrence was stupid- preserving some hypothetical future case while not realizing that there were FOUR stupid votes already in the dissent. Most concurrences are just vanity projects, but on occasion (like this one) they can actually do harm.

2. That said, the Barrett opinion is, in fact, the stupidest of them all, which is saying something. It's one thing to be wrong (like the dissent). But ... I don't even know how to start with the "You can't balance the harms, but if you could, then ... you could!" Either you get out of the Pike balancing, or you'll just end up with Brandeis Briefs ... sorry, Coney Complaints putting economic value on non-economic harms ... which people totally do. Ugh. I can't wait to find out a price tag for due process.

[Gandydancer]

Not seeing any stupidity here, other than yours. Kagan's and Sotomayor's position that courts ARE capable of balancing economic burdens against non-economic benefit might be wrong, but it is is no way obvious error on their part to say so.

The odd thing about ACB's opinion is that she chose to join the other dissent despite, if the description here is accurate, disagreeing with it in considerable part. But I guess that saved her the trouble of repeating the parts she agreed with.

[loki13]

Oh, you're that ass that I haven't blocked yet.

I know your posts. Bye!

[Gandydancer]

I don't recall your name, but count me unimpressed by your output here.

That you threaten me with your assumption of the ostrich position seems entirely fitting. The loss to me is what, exactly?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Our case illustrates the problem. On the "cost" side of the ledger, petitioners allege they will face increased production expenses because of Proposition 12. On the "benefits" side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many non-economic. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way. The competing goods before us are insusceptible to resolution by reference to any juridical principle.

Soooo close, yet so far away. The proper economic benefit can easily be judged by how much individual Californians are willing to pay extra for all those non-economic benefits. Or in other words, the proper solution is no Proposition 12 at all, since those people who want the non-economic benefits were always free as a bird to pay extra for them; Proposition 12 only exists so busybodies can force everyone else to conform to their idea of benefits.

[juris imprudent]

Real democracy in action there! As I recall the faction that voted for it was roughly a quarter of the California electorate (since nearly half of them didn’t even vote).

And I am reminded of Stewart's Griswold dissent, that this is a stupid law but that does not automatically make it an un-constitutional one.

[loki13]

The Court should not operate as a super-legislature; the fact that we keep punting issues to the Court to decide is not a feature, but most decidedly a bug.

While there is a place for dormant commerce clause jurisprudence, that place is small indeed, and we really don't want to turn it into an excuse for the Supreme Court to strike down state laws that they don't like.

[Gandydancer]

But in fact there is no data on how much more Californians are willing to pay to get pork raised with less "cruelty", and it is not even clear what experiment you could perform to get that information. You could mandate labeling rather than prohibition, but that would merely set a lower bound on the number willing to pay because the price for non-"cruel" pork would be higher than that which will result from this law. And the pork producers' objection to that law would be the same, though their cost would be lower.

[EscherEnigma]

[...] and it is not even clear what experiment you could perform to get that information

Setup a tent outside a supermaker (with their permission and cooperation, obviously) whose only purpose is to sell pork.

In the tents, you sell pork. Some tents will sell "humanly raised" pork alongside "industry-standard-raised" pork. Then, the tents will sell them for different prices.

With sufficient tents (all altering the price to different amounts) you can get some general data on how much extra people are willing to pay. Consideration would have to be given to neighborhood demographics, on class, race and religion, but with sufficient experimental tents you should have a pretty good idea of how much extra the majority of Californian's are willing to pay in exchange for "humanely raised" pork.

Alternatively, you could do the same thing, but have each tent selling only one kind ("humanely" vs "industry standard"), and again with fluctuating prices. This would test the clearing price for pork absent a cheaper alternative.

The big hurdles would be (A) getting sufficient "humanely raised pork" to be able to run the experiment with, and (B) getting the ethic's review board to sign-off. Normally they don't like it when you take money from test subjects, so there might be some consideration there.

[Bob from Ohio]

Use of “humanely" for one type destroys the experiment. Gotta use neutral terms for both.

[loki13]

Oh, I don't doubt that it will happen. I've done enough L&E briefs to know just how it will happen.

Then again, I was referring to a story relayed to me from a particularly entertaining attorney at Cravath, who had to tell an associate that while she did a great job rubbishing a Due Process argument using Law & Economics, that ... it would not have been well-taken by the Court.

[Gandydancer]

You'd also have to sell "humane" pork at prices independent of cost, albeit at prices above the in-store cost.

There's no real reason to sell industry standard pork in the tents. You could just post the prices at which the corresponding pork products are available in the store.

But the results of the experiment are anyway currently unavailable.

[EscherEnigma]

There’s no real reason to sell industry standard pork in the tents.

To rule out convenience being a factor.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Spoken like a true statist; nothing can be done without the government's involvement, and the government requires data.

Whereas the simple non-government solution has been in existence for millenia: those Californians who wanted free range pork could have started their own pig farms, could have started petitions to the pork producers, could have put their money where their votes are, and made it clear they wanted free rang pork in the stores. Then when it appeared, they could have paid extra to buy it.

That none of this has happened speaks louder than all those votes on how popular this really is, and that the real agenda is virtue signalling and making everyone else live by the virtue they want everyone else to pay for.

[Sarcastr0]

Markets are manifestly not good at broad issues like environmentalism.

Also, you know who likes data other than governments? Businesses.

[John F. Carr]

I remember Thomas voting with the majority in a recent term despite his disagreement. A precedent he disagreed with, faithfully applied, dictated the outcome. Thomas is not afraid of overturning precedent, but he could not get a majority to do so. He did not want a fractured decision without a workable rule.

[loki13]

That’s not the case here. Justice Thomas has a well-known dislike of the Dormant Commerce Clause, and as much as I do not like a lot of his jurisprudence, IIRC, he’s always been consistent in terms of narrowing it as much as he can.

EDIT- also, saying Justice Thomas is not afraid of overturning precedent is like saying that Abraham Lincoln didn't have a great time at Ford's Theater- technically true, yet also really underselling the issue.

[apedad]

"(D)oes the DCC permit courts to balance in-state benefits against out-of-state harms, even where the benefits and harms are incommensurable (e.g., economic vs. non-economic)?"

Seriously....

1. How about a justice/judge just decide whether the law is constitutional and not worry about balancing anything.

2. How would a justice/judge even BEGIN to know what to measure and what balance - and do it consistently?!?

The decision was correct and the rest was the disgrunted justices just covering their asses.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How about a justice/judge just decide whether the law is constitutional and not worry about balancing anything.

Isn't that what the common law is all about -- discovering new law where old law is not sufficiently on point?

[Gandydancer]

The Pike test says that whether a law is Constitutional or not depends on the balance. You may not like that, but your question is determinedly obtuse.

[ReaderY]

I think the conspirators have been missing the fundamental point of this case. This case is the Masterpiece Cakeshop, the Fulton of the Negative Commerce Clause.

What did the majority all agree on? Just this. Intent to discriminate against out-of-state businesses is an essential element of a negative commerce clause came. And a Pike analysis merely determines whether circumstantial evidence of discriminatory intent – discriminatory effects – is sufficient to support an inference that discriminatory intent exists.

What did the plaintiffs in this case do? They disclaimed discriminatory intent. By doing so, they pled themselves out of court. They made an own goal.

What is the lesson from this case? Don’t disclaim discriminatory intent! If the plaintiffs simply hadn’t done that, Chief Justice Roberts might well have assigned the opinion in this very case.

So this is just another “don’t say stupid things” case, like Masterpiece Cakeshop and Fulton. It appears to say something important, but in reality just tells people to avoid something that’s really easily avoidable, and beyond that actually decides nothing.

If the plaintiffs here had simply pled discriminatory intent, perhaps a majority of the Justices might have found discriminatory intent lacking here, and the balancing test failed. But it’s entirely possible that Kagan and Sotomeyor, and hence a majority, might find the Pike test very to pass as long as the plaintiffs don’t stupidly disclaim it and take it out of play. This case simply doens’t tell us. We’ll have to wait for another case to find out what the standard actually is then.

All this case does is to tell lawyers making Negative Commerce Clause claims not to say stupid stuff. Don’t disclaim discriminatory intent in your pleadings. That’s all this case actually does.

[Gandydancer]

It's not remotely obvious that Kagan and Sotomayor could have agreed that there was discriminatory intent, since there pretty obviously wasn't any. So what you identify as a key error was in fact probably a nothingburger.

[ReaderY]

If there’s one constant in American politics, it’s how easily people solicitous of a constituency can find discrimination against that constituency. Alito can find discrimination against religion at the drop of a hat. Some people on the left seem able to do the same for black people or women. And so on.

Given this history, I don’t doubt it’s possible for someone so inclined to find discrimination present in this case, even though I don’t see any myself. All a faction of the Court that’s particularly solicitous of business interests and wants them protected from state regulation would need to do would be to say that Pike balancing represents prima facia evidence of discrimination, analogous to McDonnell-Douglas, and then simply make the presumption rather hard to rebut.

[Aunt Teefah]

"All this case does is to tell lawyers making Negative Commerce Clause claims not to say stupid stuff. Don’t disclaim discriminatory intent in your pleadings. That’s all this case actually does."

I don't think this is right. After NPPC, you do have to plead discriminatory intent, yes. But to win (not just a 12(b) motion, but a favorable judgment on the merits), you have to also *prove* discriminatory intent. Which the NPPC plaintiff never could have done, because the law applied equally to CA and non-CA producers alike. So the lawyer's admission did not lose his client the case. At most, it hastened their loss to the motion-to-dismiss stage, when they would have otherwise lost on summary judgment.

[Gandydancer]

I'm not really following why the hypothetical NY beef case is supposed to have a different outcome. Which of the Justices would be obliged to change his/her opinion?

The comment, "That is especially problematical where, as here, costs and benefits in this case are entirely incommensurate, and cannot be 'weighed' or 'balanced'" is incomprehensible. No, the hypotheticals about cases where the economic costs and benefits are both measurable are pure dicta, and the JJ's split in their opinions on what the result ought to be, but "especially"-anything is not what that establishes.

[Davy C]

Which of the Justices would be obliged to change his/her opinion?

None - assuming it comes to SCOTUS. But why would they take that case when they've already taken this one? And even if they do take every single similar case, the lower courts still have to rule on them first.

So then, what's the district court supposed to do? If they follow precedent, as they must, what does that look like?

[Gandydancer]

You miss the point that the author of this post asserts that his hypothetical ought be decided differently. My question is why.

SCOTUS might take such a case with an erroneous decision so as to rebuke the lower court that ignored its decision here. No detailed opinion need be involved.

[Voize]

A way to avoid this situation is by applying holding analysis to each vote.

E.g., Barrett reasons that the factors are incommensurable and so balancing is not available. For the purpose of determining her vote in the judgment that settles the matter, and her answer to the second question is dictum.

[David Nieporent]

Nobody disputes what the outcome of this case was. The issue is what rule was established to govern future cases.

[Voize]

Rules.
That's what I'm talking about, using the same analysis for the issues as for the judgment. When a justice's answer to a first question resolves the case, their answer to the second question isn't part of their holding so they don't get a vote.
And so, instead of counting 6-3 and 5-4 on the two questions here, we count 6-3 and 4-4 because ACB dropped out after the first.

[Davy C]

That doesn't solve the underlying issue and presents new problems. Why single out Barret? By your logic *all* the justices that dissented on the first question shouldn't reach the second (after all, none of them thought balancing was appropriate, so they shouldn't have reached that question) and so the second question would have been 4-2 instead of 4-4. So we're still left with both individual questions passing, but we've still got 5 votes to dismiss. It's exactly the same situation.

And in your world we'd be presented with justices not being able to vote on a question *that the court is setting precedent on* because of how they voted on another question in the case. If four justices think a particular question settles a case but the other 5 disagree and reach another question, the 5 shouldn't then be able to rule 3-2 and exclude the other 4. (Especially if the 3-2 vote was on another potentially case-ending question, and now the 3 are voting 2-1 on the merits in favor of something that the entire court would have rejected 2-7 had they reached the merits and *also* would have rejected on procedural grounds 3-6 on the second question.)

[Voize]

I stopped at Barrett because I was lazy, not because I would only apply it to her, but I concede your other points.

[David Nieporent]

One thing I haven't seen much talked about is what this case bodes for some of the Internet regulation cases percolating up to SCOTUS. Texas's absurd social media censorship law definitely was vulnerable to a DCC challenge (in addition to other grounds like the 1A and § 230), for instance. Or Utah's porn age verification law. Now, I'm not so sure. These laws severely burden interstate commerce, but they're not facially discriminatory.

[EscherEnigma]

In one case†, the law only applies to people who choose to do business within the state. In the other‡, the state has decreed that choosing to not do business within the state is itself illegal.

So I'm not sure they're as comparable as you think.

As far as Utah goes, that sounds closer to California then Texas: you can comply by IP-blocking Utah (as PornHub did).
________
†California.
‡Texas.

[Ruqt]

The Supreme Court should not be asked to act as nanny for business entities, this is America, pig farmers, use your political influence. We all know that grapes are tortured by insufficient shade, Iowa legislators please protect the grapes, do not permit any wine to be sold in Iowa unless the vineyard restricts sunlight with proper trellis leaf shading with labels required to confirm this. And, oak barrel substitutes, non-cork enclosures, Prohibited as health hazards. Sign up all the pork producing states to guard our health. Shade the grapes.

[shawn_dude]

California produces roughly 85% of the country's wine. Iowa produces over 400,000 gallons of local wine with 1,300 acres planted, a lot less than California, sure, but those are local Iowa farmers. Shaded grapes, as you know, will produce few bunches and the quality will be unsuitable for good wine. Your tongue-in-cheek example results in zero wine from any source reaching Iowa's exhausted mothers, book club members, and higher end restaurants (at which business and political leaders eat meals, most likely.) It also shuts down local Iowa wine production. Result: California's wine industry is fine.

Iowa produces roughly 33% of the country's pork. Californians consume 15% of the nations pork. If you got North Carolina and Minnesota to join in refusing to produce pork according to California's high standards, then pork production in other places will increase to meet whatever demand still remains in the state and likely sell at a premium. Butt-hurt states can always sell to China, which is the top export country for US pork, with Japan, Mexico, and Canada not far behind.

The law impacts cows and chickens too and their respective industries have said they'll adjust without much issue. So it's only the pork producers that are yelling about this. It passed in 2018; anyone interested in making adjustments could have done so in the last 5 years. Estimates are it will raise costs by $13 per pig. Oklahoma.gov says the average pig produces 144lbs of retail cuts. Not all cuts are equal but it means an average increase of $0.09 per lb of pork sold. My local California Safeway sells bacon for roughly $10 per pound. Once supply meets demand and scarcity pricing is over, I might end up paying $10.09. Is that what all the fracas is about? Until then, I love breakfast hash made with yummy beef.

[QuantumBoxCat]

After reading through the Court’s decision in Pike (the good old days when 9 Justices could agree on a 10 page opinion) I have trouble understanding Gorsuch’s interpretation of the case.

The Court in Pike states that the parties stipulated to the fact “that the practical effect of the appellant’s [Pike] order would be to compel the company [Bruce Church] to build packing facilities in or near Parker, Arizona, that would take many months to construct and would cost approximately $200,000” (140). The Court proceeds to find that “appellant’s order does affect and burden interstate commerce” and then moves to the question of “whether it does so unconstitutionally” (142).

After stating the “general rule” for determining the validity of a state statute affecting interstate commerce, the Court states that “if a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, but more frequently it has spoken in term of “direct” and “indirect” effects and burdens” [internal citation omitted] (142). The Pike Court seems to be clearly stating that a balancing test is an appropriate means of determining the validity, under the Commerce Clause, of a state regulation affecting interstate commerce. Gorsuch, however, states that such a balancing test is an “ambitious project” that the Court “can hardly do.” This seems clearly inaccurate, since the Pike Court clearly engaged in such a balancing test.

In Pike The Court accepts Arizona’s stipulation that “the primary purpose” of the law in question “is to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging” (143). The Court states that “these are surely legitimate state interests,” and, “as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act” (143). The question of purpose shifts when the Court examines the application of the Act, by Pike, the Arizona official charged with enforcing it, to Bruce Church. With regards to the regulatory order issued by Pike, the Court states that “the appellant’s order would forbid the company to pack its cantaloupes out-side Arizona, not for the purpose of keeping the reputation of its growers unsullied, but to enhance their reputation through the reflected good will of the company’s superior produce” (144). The Court cites the appellant’s brief, which states “it is within Arizona’s legitimate interest to require that interstate cantaloupe purchasers be informed that this high quality Parker fruit was grown in Arizona” (144).

After identifying the purpose of Pike’s regulatory order, which the Court finds to be different from the purpose of the law itself, the Court states finds that “the State’s tenuous interest in having the company’s cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,00 packing plant in the State” (145). The Court concludes by stating that the “incidental consequence of a regulatory scheme could perhaps be tolerated if a more compelling state interest were involved. But here the State’s interest is minimal at best …” (146).

The approach the Pike Court took was to identify the purpose of the Act in question, which it concluded was a legitimate exercise of the state’s interests. It then examined the purpose of Pike’s regulatory order as applied to Bruce Church, assuming that “the asserted state interest is a legitimate one,” but that it was a “tenuous interest” (145). The Court then weighed this tenuous interest against the cost of a $200,000 packing plant that Bruce Church would be required to build. It concluded that the interest could not justify the cost.

Somehow, all 9 justices in Pike were able to perform a task that Gorsuch claims “no court is equipped to undertake.” The Pike Court looked at the purpose of regulatory order and balanced it against the $200,000 that the company would have to spend, and, despite these two things being (according to Gorsuch) incommensurable, reached a conclusion. Whether a court should be engaging in such balancing is certainly a legitimate question to raise, but rather then openly question Pike’s actual holding, Gorsuch contorts it to further his argument that court’s shouldn’t be conducting balancing tests in this area.

[Gandydancer]

You misquote Gorsuch. He said, “petitioners would have us retool Pike for a much more ambitious project”, not that Pike balancing was itself necessarily an unperformable ambitious project.

[Mitch]

The purpose in Pike was to discriminate against out-of-state businesses. That was forbidden. "For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal." Pike at 145.

[ScottB]

I think you're missing the point of Barrett's concurrence. She's not saying that if it was possible to weigh these benefits against these burdens she would weigh them against California. She's saying that she agrees with the Chief Justice that the plaintiffs met their threshold burden to show some substantial burden on interstate commerce. She disagrees with the plurality's reading of the Exxon case that the burdens identified by NPPC don't even count as burdens on commerce itself because they are really just harms to individual firms or production methods. But having determined that there are burdens to weigh, she thinks the benefits are incommensurable so the case has to end there. The holding of the case, therefore, is that if the burdens of a law fall on particular firms or production methods rather than commerce itself, AND the benefits of the law are non-economic, then there is no Pike balancing. That conjunctive is the narrowest proposition that 5 justices agree on, as Gorsuch/Barrett/Thomas point out in fn 4. And it may be a narrow holding but it at least makes clear that public health or morality (including animal cruelty) laws structured like Prop 12 are constitutional.

[Gandydancer]

Why?