Where’s the Pork?


February 21, 2023 12:51PM

“Dormant Commerce Clause” likely qualifies as one of the most boring terms in the English language. Nevertheless, it’s a very important constitutional concept. The U.S. Constitution provides that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This implies that if Congress is tasked with regulating interstate commerce—commerce between the states, and the instrumentalities of interstate commerce, like travel on interstate highways, railroads, and navigation of rivers, then individual states may not regulate in a way that burdens commerce between the states or those instrumentalities of interstate commerce. States cannot, for example, make it more expensive for producers from foreign states to ship their goods within their borders than it is for citizens. Boring though it may be, if you think sovereign states should be able regulate within their own borders (subject to state and federal constitutional constraints, of course), while simultaneously refraining from imposing their policy choices on their sister states who also have the right to institute reasonable rules within their own territory, you care about the Dormant Commerce Clause. New York should not be able to control behavior in Tennessee by, for example, requiring a certain state minimum wage for farm workers in Tennessee before New York allows the sale of produce from Tennessee in New York. Still bored? Well, if you’re interested in animal welfare or really love bacon (or both!), you’re interested in the Dormant Commerce Clause.

The Supreme Court recently heard oral arguments in National Pork Producers v. Ross. The case is a challenge to California Proposition 12, which bans the sale of pork if the animal was confined “in a cruel manner,” meaning with very limited space. The question the Supreme Court must answer is whether a single state can ban particular pork products from being sold within their state, or whether such regulations have sufficient upstream effects on interstate commerce that they must be left to the federal government to regulate.

The Pork Producers bringing this case argued that Prop 12 extends regulations outside the borders of California because it requires some farmers outside the state to change their pig-raising practices by allowing pregnant and nursing sows a certain amount of space while raising piglets if they want to sell in California. They argue the new regulation would cause the price of pork to increase from $5.25/pound to $8.00/pound.

California countered that by passing Prop 12, in-state voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe. They further argued that all producers (in- and out-of-state) are held to the same standards, and no producer is either required to, or entitled to, sell their pork products in California.

Predicting how the Supreme Court will rule is usually a fool’s errand. This case involves a lot of important issues with implications for how states may legislate in the future, and not just on bacon. May, for example, California also require that any products sold in the state come from jurisdictions that protect reproductive rights to the same degree as California does? May Texas require that all products sold within its borders are manufactured in right-to-work jurisdictions? On the flip side, can states no longer legislate commerce within their borders for the health, safety, and welfare of their citizens because most such regulations could have some impact on commerce outside of the state? Just some fun questions to consider while we wait for the Supreme Court to make a decision about bacon.