Dormant Commerce Clause v. Original Intent on a Pig Farm

Erik Jaffe weighs in on National Pork Producers Council v. Ross in an article for The American Spectator. His opinion can be read below.

The original public meaning of the text of the Constitution is front and center these days, with Supreme Court majority and dissenting opinions alike invoking and debating that litmus test. On Tuesday, Oct. 11, the justices will have the opportunity to restore to its original public meaning the long-distorted central economic provision of our founding document: the commerce clause.

California’s regulating how pigs are raised is particularly cheeky. The Golden State produces a trivial number of pigs but consumes a colossal 13 percent of the nation’s pork.

The commerce clause states, “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The very earliest cases, and the text of the 10th Amendment, which “reserve[s] to the States” only those “powers not delegated to Congress,” suggest that this power belongs exclusively to Congress. Yet, many have questioned the “negative” or “dormant” aspect of the interstate portion of the commerce clause. They should reconsider.

The case — National Pork Producers Council v. Ross — challenges California’s attempt to impose nationwide animal-welfare standards in the pork trade by leveraging access to its vast market for pork products. California’s Proposition 12 bans in-state sale of pork from any farm anywhere that does not comply with the initiative’s animal-care rules.

California’s regulating how pigs are raised is particularly cheeky. The Golden State produces a trivial number of pigs but consumes a colossal 13 percent of the nation’s pork, giving it immense market leverage to wield against its sister states. Given the difficulty of tracking the originating farm of pork products, processors everywhere will be forced to stop buying from farms that resist California’s rules. California rules will thus rule the pork trade nationwide.

If this sounds like the regulation of “Commerce … among the several States,” that is because it is. Applied to pork imported from Canada or China, the Supreme Court likely will view it as regulation of “Commerce with foreign Nations,” long agreed the exclusive province of Congress. That the court treats the interstate portion of the very same commerce clause as nonexclusive is both odd and ahistorical. As the great constitutional scholar of the early republic, Justice Joseph Story, explained, the founding states displayed a “cheerful acquiescence” in the exclusivity of the commerce power, a fact that no one “seriously controverted.”

A series of judicial errors made over the past century directed us away from that original understanding. To compensate for these errors, the courts developed workarounds, among them the so-called “Dormant Commerce Clause.” With a test that is short on objective rules and long on judicial policymaking, this clause gives too much discretionary power to unelected federal judges and too much interstate power to states with imperial ambitions.

If California can restrict interstate access to its markets based on its disapproval of conduct beyond its borders, other states can, too, whether to enact moral-imperialism goals, score easy partisan points, or insulate their local businesses from the economic consequences of onerous local laws.

For example, some states might seek to export their higher minimum-wage requirements on out-of-state companies as a condition for allowing local sale of imported products. Others could impose heightened minimum health coverage for workers, free child care, or any other requirement on companies seeking to export goods to that state. States also could use their leverage to export their political or moral views. Red states could ban the sale of goods from companies with diversity policies deemed too progressive or vaccination policies deemed too strict. Blue states could retaliate against red-state companies with diversity policies deemed insufficiently progressive or vaccination policies deemed too lenient. We have much further to fall in such a race to the bottom.

Such extraterritorial regulation undermines one of the most meaningful checks in the constitutional system: If a state is limited to regulating within its borders, citizens and businesses can relocate in order to escape overreaching laws while still having access to a nationwide market for goods and services. But laws that, like Proposition 12, regulate businesses throughout the nation make “escape” impossible and offset the competitive consequences of local regulatory choices.

Rather than leave states free to disrupt the national economy, the justices can and should return to the Constitution’s original public meaning. They should restore a more narrow but wholly exclusive commerce clause and forbid California’s attempt to regulate interstate commerce in pork products.

Erik S. Jaffe is an appellate attorney based in Washington, D.C. He has been involved in more than 100 matters before the Supreme Court and has clerked for Justice Clarence Thomas (1996–1997).