Dormant Commerce Clause Whittled Further After Pork Producer Case

In an effort to rid itself of an ill-conceived rule, the US Supreme Court resorted to a bald re-write of its precedent when deciding National Pork Producers Council v. Ross.

The dormant Commerce Clause, the one found “between the Constitution’s lines,” is a body of precedent premised on a supposed implication from the actual Commerce Clause of the US Constitution that prohibits states from enacting laws that burden interstate commerce.

The doctrine was more robust when the court had a freewheeling spirit, but the modern court has begun to whittle down the reach of the dormant Commerce Clause, giving states more power.

Pork Producers represents the latest episode of the court’s retrenchment. The pork industry sued to block California from enacting a regulation that would require pork sold in California to come from sows inhabiting cages of a certain minimum size. Nearly all pork sold in California comes from outside the state, so the cage rule would impose costs largely on non-California businesses. Facing a disagreeable cost, the pork industry claimed California’s regulation violated the “extraterritorial effects” line of the court’s dormant Commerce Clause precedent.

This extraterritorial effects precedent, embodied by Healy v. Beer Institute, Inc., holds that a state “statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature.”

As written, the extraterritorial effects precedent laid down a broad rule that could theoretically apply to any state law that controlled commerce taking place outside of a state’s boundaries. California, perhaps, could not tell a pork producer how to raise its pigs if the pork producer operated in Iowa.

While lower courts have applied the extraterritorial effects rule numerous times, the Pork Producers court ruled in favor of California and abrogated the extraterritorial effects rule under the guise that the rule had never existed in the first place. It claimed others had read too far into its language in Healy and that “[t]he language of an opinion is not always to be parsed as though . . . dealing with language of a statute.”

Notably, the high court made no effort to quote another part of Healy that revealed what it had really meant in that case. That is because it could not: Healy laid out a clear, if over-broad, rule for policing state regulation.

Regardless of how it got the job done, however, the Supreme Court correctly put to rest a textually dubious dormant Commerce Clause rule, thus continuing its efforts to clean up and narrow its notion of an implied regulation on state power under the Constitution.

The case is Nat’l Pork Producers v. Ross, U.S., No. 21-468, May 11, 2023

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Nathan Townsend is an associate at K&L Gates in Pittsburgh.

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