Supreme Court takes up a critically important dormant commerce clause case

Supreme Court docket file for case #21-468, National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.

Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.

Essentially, the State of California is not only attempting to dictate humane standards to 49 other States, it is also attempting to do the same to Canada.

This has nothing to do with how pork should be raised. It has everything to do with a single State attempting to impose its absolute will on other States and foreign nations.

I think the Supreme Court recognizes this, which is why they have taken this case. I strongly believe they will reverse the Ninth Circuit and invoke the Dormant Commerce Clause, meaning that California can ONLY regulate those pork producers located physically in California.

The Cato Institute amicus brief in this case handles both the dormant commerce clause issue and the sub-issue of territoriality, essentially stating that Proposition 12 violates Federalism by imposing a dictate of the people of California on the United States as a whole.

I am glad the Supreme Court took this case and I look forward to a ruling for the Petitioners in the October 2022 Term.

If Congress was to pass a statute to the same effect as Proposition 12, that would be fine. But neither the people of California nor their Legislature can dictate to the United States as a whole.

1 Like

But how are they dictating national standards? In what way are producers outside of California forced to sell their product inside of California?

It is the practical AFFECT on commerce that matters. Yes, producers can refuse to sell, but that is not a viable option. The dormant commerce clause addresses State regulations that unduly AFFECT interstate commerce. It has long been that way. That is why many regulations that even remotely touch interstate commerce have been struck down.

I am not convinced. But, like you, I believe the court will rule against CA.

Off the top of your head, do you know any cases I might look at to get an understanding?

Go to the Table of Authorities in the above Cato Institute link. The cases listed are previous Supreme Court cases on this general subject.

Thank you.

not the issue, the issue is if they don’t follow ca regs they can’t sell it ca. that is precisely what the commerce clause forbids. bars to interstate trade.

I think “forced to sell” is backwards, it is the denial of sale (making it illegal to sell products) and by making it illegal to sell the product in the state the de facto standard is then applied out of state.

The producers of the hogs (farmers) don’t butcher and package to hogs, they are sold to the meat packing industry for that.


Would this also apply to vehicles and their emissions requirements?

Actually I was wondering about things like that myself.

I was remembering back to textbook requirements and how the State of Texas was such a big purchaser their requirements basically necessitated changes in textbooks around the country.


Ah. Believe it or not, that helps me square with this

The Clean Air Act waives the dormant commerce clause and permits States to apply higher emissions standards to vehicles sold in State. However, California must obtain authorization from the EPA for each such standard.

This guy is a lawyer in the State of Michigan discussing this case. I found it very informing and interesting:

Just listening, but I believe he misstates the law. (Someone can correct me on this.)

He makes the claim that out of state entities can be fine or jailed for violating the CA law (around 4 minutes) I don’t believe this is true. CA has no jurisdiction to fine or jail an out of state producer, for example a Hog Farmer in Virginia.

I believe what the law says is that CA entities (stores, restaurants, and producers etc.) can me jailed or fined, which since they are in CA makes sense.


I understood him to mean that the Ca law calls for jail, and doesnt distinguish a difference between in state and out of state, but obviously there would be no enforcement out of state.

California would interpret the law to arrest and jail a CEO of a noncompliant producer if that CEO entered California.

People need to stop the deception.

Well, I’ll be darned. I thought for sure this was going to lose

It turns out California CAN have higher standards, and out of state producers either comply or they can’t sell in CA.

While the constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list. :laughing:

Should not have. IIRC, when the clean air act was passed, congress authorized states and localities to have stricter emissions than federal standards.

No, what it means is California gets to write rules the entire country has to follow.

I live in New York State. And I have to read those inane prop 65 warnings on just about everything I buy, becuase it’s cheaper for them to put the warnings on all products than to only put it on products destined for that state.

The same thing will be true for pork. It’s actually cheaper to just make everyone pay for the Cali standard than to segregate it. And since California uses 13% of all pork products, not selling to them is not an option either.

I hope you’re happy.

I am happy. I like the higher standards.

But I think that you are wrong: there is a world of difference between just slapping a sticker on a product and meeting these new standards.

Pork producers (especially those further east) should be able to sell their products that don’t meet the new standards. But i guess we’ll have to wait and see.