WASHINGTON, DC – Following oral argument at the Supreme Court this morning in National Pork Producers Council v. Ross, a case in which the Court is considering whether California Proposition 12 violates the so-called dormant Commerce Clause, Constitutional Accountability Center Senior Appellate Counsel Brian Frazelle issued the following reaction

In today’s hearing, Justices from across the ideological spectrum expressed deep skepticism about the pork producers’ far-reaching arguments against Proposition 12—arguments that, if accepted would dramatically expand the Court’s dormant Commerce Clause doctrine and threaten numerous state laws that protect their own residents from all kinds of harm.

As Justice Thomas noted, Proposition 12 is not about reaching out and regulating something across state lines because it regulates only sales of pork within California. And Justice Gorsuch described the pork producers’ arguments as “enshrining non-textual economic liberties into the Constitution” in an effort to protect the modes of production used by certain industry participants.

In response to sharp questioning, the pork producers’ counsel claimed that states cannot require businesses to change their production methods in any way as a condition of selling goods within a state’s borders. But as many of the Justices’ questions rightly acknowledged, accepting this argument would require, as Justice Barrett put it, “an extension” of prior cases in a manner that would limit state sovereignty.

The illogic of the pork producers’ arguments also came under scrutiny, particularly their claim that states like California can ban pork sales entirely, but cannot take the lesser step of banning only pork that was produced using cruel methods of confinement. And the extreme nature of their argument was highlighted by their acknowledgment that, under their theory, states could not even ban the sale of products that were produced with forced labor.

In an effort to defend their position, the pork producers’ attorney repeatedly cited the Commerce Clause’s purpose to prevent economic balkanization. But constitutional history cannot help the pork industry here. As we showed in an amicus brief on behalf of law professors, the Framers did not adopt the Commerce Clause to preclude health and safety laws like Proposition 12. Instead, they meant only to prevent states from creating protectionist trade barriers that promote a state’s own industry by discriminating against other states’ products—which Proposition 12 concededly does not do.

To be sure, Justices also expressed concerns about how far states can go in regulating product sales, particularly as a covert means of influencing other states’ policies. But as the briefing in this case makes clear, Proposition 12 itself is a long-accepted form of state regulation, following a tradition of states protecting the health, safety, and moral concerns of their own residents by setting rules for in-state conduct.

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Resources:

Case page in National Pork Producers Council v. Ross: https://www.theusconstitution.org/litigation/national-pork-producers-council-v-ross/ 

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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