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May 11, 2023

Supreme Court Decides National Pork Producers, et al. v. Ross et al.

On May 11, 2023, the Supreme Court of the United States issued a decision in National Pork Producers, et al. v. Ross, et al., No. 21-468, holding that a California law forbidding in-state sale of pork produced from animals “confined in a cruel manner” (known as “Proposition 12”) did not violate the U.S. Constitution’s “Dormant Commerce Clause.”

In November 2018, California voters adopted a ballot initiative known as Proposition 12, which announced new standards for the in-state sale of pork products. Proposition 12 forbids the in-state sale of whole pork meat that comes from breeding pigs or their immediate offspring that are “confined in a cruel manner,” regardless of whether the pigs are raised in California or elsewhere. The law defines “cruel manner” to mean if it prevents a pig from “lying down, standing up, fully extending [its] limbs, or turning around freely.”

Shortly after Proposition 12’s adoption, the National Pork Producers Council and the American Farm Bureau Federation (“Petitioners”) challenged it, arguing that it violated the so-called “Dormant Commerce Clause” by forcing pork producers outside California to modify their pig-housing practices through substantial capital improvements.

The District Court held that Petitioners failed to state a Dormant-Commerce-Clause claim as a matter of law, and the Ninth Circuit affirmed. Following oral argument, the Supreme Court held that Proposition 12 did not violate the U.S. Constitution’s “Dormant Commerce Clause.”

As an initial matter, the Supreme Court observed that an “antidiscrimination principle lies at the ‘very core’ of [its] dormant Commerce Clause jurisprudence,” such that no state may use its laws to discriminate purposefully against out-of-state economic interests. But Petitioners were not alleging discrimination. Instead, they raised two alternative legal theories, both of which the Court rejected.

First, Petitioners argued that the Court’s Dormant Commerce Clause jurisprudence suggested an “almost per se” rule forbidding state laws that have the “practical effect of controlling commerce outside the State,” even when those laws do not purposely discriminate against out-of-state economic interests — a so-called “extraterritoriality doctrine.” The Supreme Court declined to adopt this rule. It emphasized that while it did “not mean to trivialize the role territory and sovereign boundaries play in our federal system,” that did not mean “that any question about the ability of a State to project its power extraterritorially must yield to an ‘almost per se’ rule under the dormant Commerce Clause.” The Court reiterated that the antidiscrimination principle remained at the core of its dormant Commerce Clause doctrine and observed that the practical effects of a law may still provide evidence of an underlying discriminatory purpose. 

Second, Petitioners contended that the balancing test in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), and its progeny prevented enforcement of a state law whose burdens were “‘clearly excessive in relation to the putative local benefits.” The Court also rejected this second theory as overstating the extent to which Pike and its progeny depart from the antidiscrimination rule at the core of the Court’s Dormant Commerce Clause jurisprudence. Though no one opinion controlled this part of the Court’s analysis, it ultimately declined to prevent a state from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms. The Court therefore affirmed dismissal of Petitioners’ complaint.

Justice Gorsuch announced the judgment of the Court and delivered the opinion of the Court, in which Justices Thomas, Sotomayor, Kagan, and Barrett joined except as to certain parts. Justice Gorsuch’s opinion was joined in certain parts only by Justices Thomas and Barrett and in another part only by Justices Thomas, Sotomayor, and Kagan. Justice Sotomayor filed an opinion concurring in part, in which Justice Kagan joined. Justice Barrett filed an opinion concurring in part. Chief Justice Roberts filed an opinion concurring in part and dissenting in part, in which Justices Alito, Kavanaugh, and Jackson joined. Justice Kavanaugh filed an opinion concurring in part and dissenting in part.

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