National Pork Producers Council v Ross (2023)

NATIONAL PORK PRODUCERS COUNCIL, et al., PETITIONERS v. KAREN ROSS

on writ of certiorari to the united states court of appeals for the ninth circuit

[May 11, 2023]

Justice Gorsuch announced the judgment of the Court and delivered the opinion of the Court, except as to Parts IV–B, IV–C, and IV–D.

What goods belong in our stores? Usually, consumer demand and local laws supply some of the answer. Recently, California adopted just such a law banning the in-state sale of certain pork products derived from breeding pigs confined in stalls so small they cannot lie down, stand up, or turn around. In response, two groups of out-of-state pork producers filed this lawsuit, arguing that the law uncons titutionally interferes with their preferred way of doing business in violation of this Court’s dormant Commerce Clause precedents. Both the district court and court of appeals dismissed the producers’ complaint for failing to state a claim.

We affirm. Companies that choose to sell products in various States must normally comply with the laws of those various States. Assuredly, under this Court’s dormant Commerce Clause decisions, no State may use its laws to discriminate purposefully against out-of-state economic interests. But the pork producers do not suggest that California’s law offends this principle. Instead, they invite us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.

States (and their predecessors) have long enacted laws aimed at protecting animal welfare. As far back as 1641, the Massachusetts Bay Colony prohibited “Tirranny or Crueltie towards any bruite Creature.” Today, Massachusetts prohibits the sale of pork products from breeding pigs (or their offspring) if the breeding pig has been confined “in a manner that prevents [it] from lying down, standing up, fully extending [its] limbs or turning around freely.” Nor is that State alone. Florida’s Constitution prohibits “any person [from] confin[ing] a pig during pregnancy . . . in such a way that she is prevented from turning around freely.” Arizona, Maine, Michigan, Oregon, and Rhode Island, too, have laws regulating animal confinement practices within their borders.

This case involves a challenge to a California law known as Proposition 12. In November 2018 and with the support of about 63% of participating voters, California adopted a ballot initiative that revised the State’s existing standards for the in-state sale of eggs and announced new standards for the in-state sale of pork and veal products. As relevant here, Proposition 12 forbids the in-state sale of whole pork meat that comes from breeding pigs that are “confined in a cruel manner.” Subject to certain exceptions, the law deems confinement “cruel” if it prevents a pig from “lying down, standing up, fully extending [its] limbs, or turning around freely.” Since Proposition 12’s adoption, the State has begun developing “proposed regulations” that would permit compliance “certification[s]” to be issued “by non-governmental third parties, many used for myriad programs (e.g., ‘organic’) already

A spirited debate preceded the vote on Proposition 12. Proponents observed that, in some farming operations, pregnant pigs remain “[e]ncased” for 16 weeks in “fit-to-size” metal crates. These animals may receive their only opportunity for exercise when they are moved to a separate barn to give birth and later returned for another 16 weeks of pregnancy confinement—with the cycle repeating until the pigs are slaughtered. Proponents hoped that Proposition 12 would go a long way toward eliminating pork sourced in this manner “from the California marketplace.” Proponents also suggested that the law would have health benefits for consumers because “packing animals in tiny, filthy cages increases the risk of food poisoning.”

Opponents pressed their case in strong terms too. They argued that existing farming practices did a better job of protecting animal welfare (for example, by preventing pig-on-pig aggression) and ensuring consumer health (by avoiding contamination) than Proposition 12 would. They also warned voters that Proposition 12 would require some farmers and processors to incur new costs. Ones that might be “passed through” to California consumers.

Shortly after Proposition 12’s adoption, two organizations—the National Pork Producers Council and the American Farm Bureau Federation (collectively, petitioners)—filed this lawsuit on behalf of their members who raise and process pigs. Petitioners alleged that Proposition 12 violates the U. S. Constitution by impermissibly burdening interstate commerce.

In support of that legal claim, petitioners pleaded a number of facts. They acknowledged that, in response to consumer demand and the laws of other States, 28% of their industry has already converted to some form of group housing for pregnant pigs. But, petitioners cautioned, even some farmers who already raise group-housed pigs will have to modify their practices if they wish to comply with Proposition 12. Much of pork production today is vertically integrated, too, with farmers selling pigs to large processing firms that turn them into different “cuts of meat” and distribute the “different parts all over to completely different end users.” Revising this system to segregate and trace Proposition 12-compliant pork, petitioners alleged, will require certain processing firms to make substantial new capital investments. Ultimately, petitioners estimated that “compliance with Proposition 12 will increase production costs” by “9.2% . . . at the farm level.” These compliance costs will fall on California and out-of-state producers alike. But because California imports almost all the pork it consumes, petitioners emphasized, “the majority” of Proposition 12’s compliance costs will be initially borne by out-of-state firms.

The district court held that petitioners’ complaint failed to state a claim as a matter of law and dismissed the case. The Ninth Circuit affirmed. Following that ruling, petitioners sought certiorari and we agreed to consider the complaint’s legal sufficiency for ourselves.

The Constitution vests Congress with the power to “regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. Everyone agrees that Congress may seek to exercise this power to regulate the interstate trade of pork, much as it has done with various other products. Everyone agrees, too, that congressional enactments may preempt conflicting state laws. But everyone also agrees that we have nothing like that here. Despite the persistent efforts of certain pork producers, Congress has yet to adopt any statute that might displace Proposition 12 or laws regulating pork production in other States.

That has led petitioners to resort to litigation, pinning their hopes on what has come to be called the dormant Commerce Clause. Reading between the Constitution’s lines, petitioners observe, this Court has held that the Commerce Clause not only vests Congress with the power to regulate interstate trade; the Clause also “contain[s] a further, negative command,” one effectively forbidding the enforcement of “certain state [economic regulations] even when Congress has failed to legislate on the subject.”

This view of the Commerce Clause developed gradually . . . Eventually, the Court held that state laws offend the Commerce Clause when they seek to “build up . . . domestic commerce” through “burdens upon the industry and business of other States,” regardless of whether Congress has spoken. At the same time, though, the Court reiterated that, absent discrimination, “a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to” the interests of its citizens. Today, this antidiscrimination principle lies at the “very core” of our dormant Commerce Clause jurisprudence.

Admittedly, some “Members of the Court have authored vigorous and thoughtful critiques of this interpretation” of the Commerce Clause. Whatever one thinks about these critiques, we have no need to engage with any of them to resolve this case. Even under our received dormant Commerce Clause case law, petitioners begin in a tough spot. They do not allege that California’s law seeks to advantage in-state firms or disadvantage out-of-state rivals. In fact, petitioners disavow any discrimination-based claim, conceding that Proposition 12 imposes the same burdens on in-state pork producers that it imposes on out-of-state ones.

III

Having conceded that California’s law does not implicate the antidiscrimination principle at the core of this Court’s dormant Commerce Clause cases, petitioners are left to pursue two more ambitious theories. In the first, petitioners invoke what they call “extraterritoriality doctrine.” They contend that our dormant Commerce Clause cases suggest an additional and “almost per se” rule forbidding enforcement of 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. Petitioners further insist that Proposition 12 offends this “almost per se” rule because the law will impose substantial new costs on out-of-state pork producers who wish to sell their products in California.

This argument falters out of the gate. Put aside what problems may attend the minor (factual) premise of this argument. Focus just on the major (legal) premise. Petitioners say the “almost per se” rule they propose follows ineluctably from three cases. A close look at those cases, however, reveals nothing like the rule petitioners posit. Instead, each typifies the familiar concern with preventing purposeful discrimination against out-of-state economic interests. . . .

To resolve disputes about the reach of one State’s power, this Court has long consulted original and historical understandings of the Constitution’s structure and the principles of “sovereignty and comity” it embraces. The antidiscrimination principle found in our dormant Commerce Clause cases may well represent one more effort to mediate competing claims of sovereign authority under our horizontal separation of powers. But none of this means, as petitioners suppose, 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. This Court has never before claimed so much “ground for judicial supremacy under the banner of the dormant Commerce Clause.” We see no reason to change course now.[1]

Failing in their first theory, petitioners retreat to a second they associate with Pike v. Bruce Church, Inc. (1970). Under Pike, they say, a court must at least assess “ ‘the burden imposed on interstate commerce’ ” by a state law and prevent its enforcement if the law’s burdens are “ ‘clearly excessive in relation to the putative local benefits.’ ” Petitioners then rattle off a litany of reasons why they believe the benefits Proposition 12 secures for Californians do not outweigh the costs it imposes on out-of-state economic interests. We see problems with this theory too.

In the first place, petitioners overstate the extent to which Pike and its progeny depart from the antidiscrimination rule that lies at the core of our dormant Commerce Clause jurisprudence. As this Court has previously explained, “no clear line” separates the Pike line of cases from our core antidiscrimination precedents. General Motors Corp. v. Tracy, 519 U.S. 278, 298, n. 12 (1997). While many of our dormant Commerce Clause cases have asked whether a law exhibits “ ‘facial discrimination,’ ” “several cases that have purported to apply [Pike,] including Pike itself,” have “turned in whole or in part on the discriminatory character of the challenged state regulations.” In other words, if some of our cases focus on whether a state law discriminates on its face, the Pike line serves as an important reminder that a law’s practical effects may also disclose the presence of a discriminatory purpose.

Pike itself illustrates the point. That case concerned an Arizona order requiring cantaloupes grown in state to be processed and packed in state. The Court held that Arizona’s order violated the dormant Commerce Clause. Even if that order could be fairly characterized as facially neutral, the Court stressed that it “requir[ed] business operations to be performed in [state] that could more efficiently be performed elsewhere.” The “practical effect[s]” of the order in operation thus revealed a discriminatory purpose—an effort to insulate in-state processing and packaging businesses from out-of-state competition. Other cases in the Pike line underscore the same message.

In Minnesota v. Clover Leaf Creamery Co., the Court found no impermissible burden on interstate commerce because, looking to the law’s effects, “there [was] no reason to suspect that the gainers” would be in-state firms or that “the losers [would be] out-of-state firms.” 449 U.S. 456, 473 (1981); see also id., at 474–477, and n. 2 (Powell, J., concurring in part and dissenting in part) (asking whether the “actual purpose,” if not the “ ‘avowed purpose,’ ” of the law was discrimination). Similarly, in Exxon Corp. v. Governor of Maryland, the Court keyed to the fact that the effect of the challenged law was only to shift business from one set of out-of-state suppliers to another. 437 U.S. 117, 127 (1978). And in United Haulers, a plurality upheld the challenged law because it could not “detect” any discrimination in favor of in-state businesses or against out-of-state competitors. 550 U. S., at 346. In each of these cases and many more, the presence or absence of discrimination in practice proved decisive.

Once again, we say nothing new here. Nor does any of this help petitioners in this case. They not only disavow any claim that Proposition 12 discriminates on its face. They nowhere suggest that an examination of Proposition 12’s practical effects in operation would disclose purposeful discrimination against out-of-state businesses. While this Court has left the “courtroom door open” to challenges premised on “even nondiscriminatory burdens,” and while “a small number of our cases have invalidated state laws . . . that appear to have been genuinely nondiscriminatory,” petitioners’ claim falls well outside Pike’s heartland. That is not an auspicious start.

Matters do not improve from there. While Pike has traditionally served as another way to test for purposeful discrimination against out-of-state economic interests, and while some of our cases associated with that line have expressed special concern with certain state regulation of the instrumentalities of interstate transportation, petitioners would have us retool Pike for a much more ambitious project. They urge us to read Pike as authorizing 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 we can hardly do. Whatever other judicial authorities the Commerce Clause may imply, that kind of freewheeling power is not among them. Petitioners point to nothing in the Constitution’s text or history that supports such a project. And our cases have expressly cautioned against judges using the dormant Commerce Clause as “a roving license for federal courts to decide what activities are appropriate for state and local government to undertake.”

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 noneconomic. 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. Really, the task is like being asked to decide “whether a particular line is longer than a particular rock is heavy.”

Faced with this problem, petitioners reply that we should heavily discount the benefits of Proposition 12. They say that California has little interest in protecting the welfare of animals raised elsewhere and the law’s health benefits are overblown. But along the way, petitioners offer notable concessions too. They acknowledge that States may sometimes ban the in-state sale of products they deem unethical or immoral without regard to where those products are made (for example, goods manufactured with child labor). And, at least arguably, Proposition 12 works in just this way—banning from the State all whole pork products derived from practices its voters consider “cruel.”

So even accepting everything petitioners say, we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours.

More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant “political and economic” costs and benefits for themselves, and “try novel social and economic experiments” if they wish.

If, as petitioners insist, California’s law really does threaten a “massive” disruption of the pork industry, if pig husbandry really does “ ‘imperatively demand’ ” a single uniform nationwide rule—they are free to petition Congress to intervene. Under the (wakeful) Commerce Clause, that body enjoys the power to adopt federal legislation that may preempt conflicting state laws. That body is better equipped than this Court to identify and assess all the pertinent economic and political interests at play across the country. And that body is certainly better positioned to claim democratic support for any policy choice it may make. But so far, Congress has declined the producers’ sustained entreaties for new legislation. And with that history in mind, it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street.

The Chief Justice’s concurrence in part and dissent in part (call it “the lead dissent”) offers a contrasting view. Correctly, it begins by rejecting petitioners’ “almost per se” rule against laws with extraterritorial effects. And correctly, it disapproves reading Pike to endorse a “freewheeling judicial weighing of benefits and burdens.” But for all it gets right, in other respects it goes astray. In places, the lead dissent seems to advance a reading of Pike that would permit judges to enjoin the enforcement of any state law restricting the sale of an ordinary consumer good if the law threatens an “ ‘excessive’ ” “har[m] to the interstate market” for that good. It is an approach that would go much further than our precedents permit. So much further, in fact, that it isn’t clear what separates the lead dissent’s approach from others it purports to reject.

Consider an example. Today, many States prohibit the sale of horsemeat for human consumption. But these prohibitions “har[m] the interstate market” for horsemeat by denying outlets for its sale. Not only that, they distort the market for animal products more generally by pressuring horsemeat manufacturers to transition to different products, ones they can lawfully sell nationwide. Under the lead dissent’s test, all it would take is one complaint from an unhappy out-of-state producer and—presto—the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers “excessive.” The same would go for all manner of consumer products currently banned by some States but not by others—goods ranging from fireworks to single-use plastic grocery bags. Rather than respecting federalism, a rule like that would require any consumer good available for sale in one State to be made available in every State.

The Framers equipped Congress with considerable power to regulate interstate commerce and preempt contrary state laws. In the years since, this Court has inferred an additional judicially enforceable rule against certain, especially discriminatory, state laws adopted even against the backdrop of congressional silence. But “ ‘extreme caution’ ” is warranted before a court deploys this implied authority. Preventing state officials from enforcing a democratically adopted state law in the name of the dormant Commerce Clause is a matter of “extreme delicacy,” something courts should do only “where the infraction is clear.”

Petitioners would have us cast aside caution for boldness. They have failed—repeatedly—to persuade Congress to use its express Commerce Clause authority to adopt a uniform rule for pork production. Like the courts that faced this case before us, we decline both of petitioners’ incautious invitations.The judgment of the Ninth Circuit is Affirmed.