Court Upholds California's Pig Protection Law

The Supreme Court ruled today that California's Prop 12, which prohibits the in-state sale of whole pork meat that comes from breeding pigs that are "confined in a cruel manner," did not violate the Dormant Commerce Clause. The ruling means that Prop 12 stays on the books. It also means that the familiar Dormant Commerce Clause test survives, even if the various opinions exposed fault lines on the Court.

The case, National Pork Producers Council v. Ross, tested how the Court would assess a neutral state law that impacted out-of-state pork producers. (Everyone agreed that Prop 12 was "neutral," in that it didn't facially discriminate against out-of-state producers.) Historically, the Court applied the balancing test from Pike v. Bruce Church, Inc. That test goes like this: When a neutral state law poses a substantial burden on interstate commerce, the law fails if its economic burdens are "clearly excessive in relation to the putative local benefits."

The Council, however, pitched a new approach. It argued that the Dormant Commerce Clause includes an "almost per se" rule that prohibits state laws that have the "practical effect of controlling commerce outside the state." The Court rejected this claim, saying that it lacked support in the Court's cases.

Alternatively, the Council claimed that Prop 12 failed the traditional Pike test. The Court rejected this claim, too, and for different reasons. Justice Gorsuch wrote for himself and Justices Thomas and Barrett that the Court was not equipped to balance the "incommensurable goods" under Pike, and that this is best left to the legislature. Justice Gorsuch wrote for himself and Justices Thomas, Sotomayor, and Kagan that the Council's complaint failed to allege a "substantial burden" on interstate commerce, so the Court shouldn't even get to the balancing. Chief Justice Roberts (concurring in part and dissenting in part) wrote for himself and Justices Alito, Kavanaugh, and Jackson that the Council alleged a "substantial burden" and that the Court should remand for balancing. (The Ninth Circuit dismissed the case based on lack of a substantial burden and therefore didn't balance.)

That's a little complicated, so let's try this:

-Five justices (Justices Thomas, Gorsuch, Sotomayor, Kagan, and Barrett) agreed that Prop 12 stays on the books.

-Six justices (Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kagan, and Kavanaugh) agreed that the core Pike test, including its balancing of economic burdens against putative benefits, remain the law for nondiscriminatory state actions.

-Four justices (Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson) said that Prop 12 created a substantial burden. They argued that the Court should consider not only "compliance costs," but also "market-wide consequences of compliance," in determining whether a state law creates a substantial burden.

-Justice Barrett separately agreed that Prop 12 created a substantial burden, but only if Pike balancing were workable in the first place. But she argued that it's not, at least in this case. (Justice Barrett didn't formally join any part of Chief Justice Roberts's opinion. She made this point (citing Chief Justice Roberts's opinion) in a separate concurrence.)

-Taken together, the last two bullets mean that five justices agree that the Court should consider both "compliance costs" and "consequential harms" in assessing whether a state law substantially burdens the interstate economy and thus triggers the balancing test.

-Four justices (Justices Gorsuch, Thomas, Sotomayor, and Kagan) said that Prop 12 didn't create a substantial burden on interstate commerce, and so there's no need to consider whether its economic burdens are excessive in relation to the putative local benefits.

-Three justices (Justices Gorsuch, Thomas, and Barrett) said that Pike's balancing test is unworkable. This approach would limit Pike to cases where a state law discriminates against interstate commerce or where a state law regulates the instrumentalities of interstate commerce (and not to cases where a state law doesn't discriminate). According to Justice Kavanaugh, this approach "would essentially overrule the Pike balancing test."

-Justice Kavanaugh wrote separately to argue that Prop 12 might violate the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.