SCOTUS Agrees to Hear Significant Dormant Commerce Clause Case

Three cases were granted certiorari today by the Supreme Court. One of these cases is: Ross v. National Pork Producers Council The Dormant Commerce Clause restricts state regulations with extraterritorial consequences. This case may have far-reaching implications beyond California’s specific rules regarding the sale of pork products.

NPPC v. Ross The petition challenges California’s Proposition 12 which prohibits animals from being sold if they were kept in cruel conditions. Petitioners argue that the proposition is in violation of the Dormant Commerce Clause because many California-made animal products are made in California.

Petition 12 prohibits the sale of products based on the conduct of producers in other countries. According to petitioners, it imposes an unreasonable burden on interstate commerce. Additionally, it amounts to unconstitutional extraterritorial regulations. California is trying to establish its policies preferences about how farm animals should be treated in different jurisdictions. It would not be an issue if the California law only specified how farm animals were treated in the state. However, because California would have to pay the cost of compliance with California standards, producers within California might find themselves at competitive disadvantage.

It could have big implications beyond agricultural law. The Dormant Commerce Clause has also been challenged in state energy and climate regulations. In the event that Proposition 12 were deemed unconstitutional by the Supreme Court, this could cast doubt upon state laws that regulate fuel source based on carbon dioxide emissions over their entire lifecycles.

The case is particularly interesting as it’s not clear where current justices stand on Dormant Commerce Clause matters. The doctrine is popular with conservatives as well as business groups. It removes any regulatory barriers to interstate commerce that were part of the reason for replacing Articles of Confederation. Some others believe that the doctrine is an invention of the atextual judiciary and should not be used at all. While Justices Thomas, Gorsuch and other conservative justices are likely to be in the latter group, it is possible that some others might be. We may get a glimpse into Justice Ketanji Brown Jackson’s approach to federalism, structural constitutional issues in this case.

If that wasn’t enough, let us not forget about bacon. Everything is better when it comes to bacon.