The Supreme Court’s opinion last week in National Pork Producers Council v. Ross raises more questions than it answers regarding what state laws might violate the dormant Commerce Clause. California prohibits the in-state sale of pork that comes from pigs raised in “cruel” conditions—even though nearly all the pork sold in California is raised in other states. The Court upheld that law in the face of a dormant Commerce Clause challenge. But the Court’s fractured reasoning makes it hard to predict how other laws might fare.

As a refresher, the Dormant Commerce Clause stems from Congress’s Article 1, Section 8 authority to regulate commerce “among the several States.” In contrast to preemption, which limits states’ authority in an area where Congress has acted, the Dormant Commerce Clause limits states’ ability to regulate even when there is no relevant congressional action. 

At oral argument, Justice Kagan had asked whether, if California can pass a law prohibiting the sale of pork raised in certain conditions, Texas could pass a law prohibiting the sale of goods manufactured by union labor. Other justices pressed the same question: What’s the difference between California’s law and a law that bars the sale of out-of-state goods based on labor conditions?

The Court’s decision in National Pork Producers doesn’t answer this question. Or at least, a majority of the Court doesn’t agree on the right answer. Three justices joined a discussion (part IV.B of the lead opinion) that doubts whether judges should ever try to weigh a law’s out-of-state costs against its in-state benefits under the dormant Commerce Clause. If that view had gained a majority, it would have effectively overruled the 50-year-old balancing test in dormant Commerce Clause cases that was first set out in Pike v. Bruce Church, Inc.

But the anti-Pike view didn’t prevail. Instead, a majority of the Court voiced support for using the Pike balancing test to decide whether a state law puts a “substantial burden” on interstate commerce. So it seems that Pike‘s approach to the dormant Commerce Clause lives on.

When might a state law that substantially burdens interstate commerce fail the Pike balancing test? The chief justice’s dissent—joined by Justices Alito, Kavanaugh, and Jackson—makes some suggestions. A challenge to a law that has “sweeping extraterritorial effects” in an “interconnected” national market would, in the chief justice’s view, at least survive a motion to dismiss. His opinion distinguishes between harm to the interstate market, which is actionable, and harm to individual firms, which may not be.

The hypothetical Texas anti-labor law that Justice Kagan raised at argument provokes the same concerns that animated the chief justice’s dissent. “[D]o we want to live in a world,” Justice Kagan asked, “where we’re constantly at each other’s throats,” where “Texas is at war with California, and California at war with Texas?” We don’t have to, according to the chief justice. As he put it, Pike balancing “reflects the basic concern” that the Commerce Clause should protect “free private trade in the national marketplace.”

Although the Court didn’t have to go as far in National Pork Producers, these issues are certain to arise frequently. Take, for example, state attorneys general enforcing consumer protection statutes. In that instance, can the California attorney general enforce California law against a Texas company conducting business with California consumers outside of the borders of California?

Exactly how the courts will protect a national marketplace after the decision in National Pork Producers remains to be seen. States may see the decision as permission to pass more laws like California’s. But a majority of the Court seems to think that Pike balancing still has a role to play.

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Photo of Leonard L. Gordon Leonard L. Gordon

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in…

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.

Photo of Jay Johnson Jay Johnson

Jay C. Johnson serves clients in a variety of infrastructure and natural resource contexts, guiding them past regulatory and environmental review obstacles to win agency approvals, then defending those approvals in court. Jay focuses on projects that raise complex issues, attracting scrutiny from…

Jay C. Johnson serves clients in a variety of infrastructure and natural resource contexts, guiding them past regulatory and environmental review obstacles to win agency approvals, then defending those approvals in court. Jay focuses on projects that raise complex issues, attracting scrutiny from both regulators and third-party groups. His recent representations include mining, rail and surface transportation, and port projects.