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. I 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.
II 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. A 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. . . . B 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] IV 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. A 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. B 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. D 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. V 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. |