10am on a Thursday is a little early to have pork chops on the brain. But that’s the frame of mind Justice Neil Gorsuch was in on the morning of May 11, when the Supreme Court handed down his decision in the long-awaited Commerce Clause case. National Council of Pork Producers v. Ross. The question: Whether the Constitution allowed California to pass a law regulating pork sales in its territory when most of the law’s effects would fall on businesses elsewhere. According to Gorsuch, “While the Constitution addresses many important issues, the type of pork chops that California merchants are allowed to sell is not on that list.”
Yet somehow, Judge Gorsuch got just five votes for this seemingly simple result. And many of his reasons for that result failed to win the majority. That’s because, despite his terse summary, there was a lot more at stake than the pig. The numerous separate opinions (five in total) and the heterodox groupings of judges—Ketanji Brown Jackson with Samuel Alito and Sonia Sotomayor partly with Clarence Thomas—show the deep transversal divisions among the members of the Court on the central issue of the case: the measure in which the Constitution displaces state sovereignty to guarantee open markets.
In particular, California persuaded three of the Court’s most conservative justices, Thomas, Gorsuch and Amy Coney Barrett, to agree that the state could adopt a law that would affect pork production across the country. If that sounds a bit far-fetched, it’s worth digging into some details. The result is more conservative than it appears at first glance.
The Commerce Clause gives Congress, among other things, power to regulate commerce “among the several states.” Historically, courts have interpreted the clause so broadly that its mere existence prevents states from enacting certain laws that affect commerce even when Congress has not legislated. This exclusion by implication is known as the “inactive commerce clause.”
Because Congress had not enacted the relevant legislation, the pork producers argued that the Dormant Commerce Clause prevented California from meddling in their operations. Although the regulated pork producers encouraged the proceedings, at its core, the case was not about the rights of business owners, but about the right of states to regulate where the federal government has failed to do so. In interpreting the Commerce Clause, courts are necessarily “marking the powers of separate sovereigns.”
The three conservatives on the California side have been described by Professor John McGinnis as the Court’s staunchest originalists. This methodological commitment to understanding the Constitution in general, and the Commerce Clause in particular, according to its original public meaning prompted these judges to side with state sovereignty over the free market.
At first glance, the California law, adopted after 63% of voters approved it, affected only pork sold in California. California could not constitutionally regulate pork sold elsewhere. But pork producers argued that the size of the California market and their need to standardize production practices meant the state’s law had an “extraterritorial” effect. According to hog farmers, the California law offended not only the latent Commerce Clause and the wisdom of free markets, but the founding precept of federalism: equality among sovereign states.
This sparked an intramural debate among the six conservative justices over where the Founders struck the balance between reserving regulatory authority to the states and promoting an open national market. Justice Brett Kavanaugh, who joined Chief Justice John Roberts’ main dissent, wrote separately to explain that the framers wrote the Constitution to “create a national economic market and overcome state restrictions on free trade,” and that the people ratified that Constitution to “promote[] free trade between states. Kavanaugh conceded that absent congressional action, states can impose “regulations for products sold in that state,” but bristled at the idea that this would have effects elsewhere and could be based on non-economic concerns.
Gorsuch’s opinion was more nuanced. “In our interconnected national marketplace, many (perhaps most) state laws have the ‘practical effect of controlling’ extraterritorial behavior,” he reasoned. The Founders generation had not commissioned any branch of the federal government (much less the judiciary) to stamp out all laws that made trade less free in any way. They also did not insist that the trade restrictions be enacted solely for economic reasons so that they would not be considered illegal. Rather, his concern was to end protectionist laws that states enacted to exclude or disadvantage out-of-state businesses. The pork producers conceded that, for all its ill effects, discrimination against out-of-state producers was not a feature of California law.
We can infer that the Founder generation saw no constitutional weakness in other forms of trade restrictions because, as Gorsuch points out, “[s]Since its founding, States have promulgated an “immense mass” of “[i]inspection laws, quarantine laws, [and] health laws of all kinds” that have a “considerable” influence on trade outside their borders”. Among them are laws restricting the cruel treatment of animals destined for slaughter, which have a history stretching back from the California law in question to the first decades of our colonial infancy.
So what has changed? Not the Constitution, not in any relevant way. Rather, the changes have been in the character of the industry, the nature of market participants, and increased skepticism about state power. At the time of the founding, the private company form was a rare regulated privilege granted by state legislatures to companies with a limited geographic scope. Now, the companies’ unlimited lifespan, capitalization, and global presence allow for the type of market structure prevalent in the pork industry, where four vertically integrated producers control approximately 70% of the US market. Market structure and concentration contribute significantly to California’s ability to project the effects of its law outside of its territory. Smaller regional companies, of course, might shrug off foreign laws.
A law that might have affected interstate commerce in the Foundation little or nothing will now have “substantial” effects on interstate commerce. Even Judge Barrett, who agreed with Gorsuch, conceded that the effect of the California law was substantial. This is not because states are now writing more invasive laws; in large part this is because companies are now consolidating what were once local businesses into vast entities that span the nation and are present in all markets. Do these market dynamics expand the dormant Commerce Clause over time while reducing the scope of state sovereignty? That seems to follow the approach endorsed by Roberts, Kavanaugh, and their fellow travelers, Alito and Jackson.
Gorsuch’s vision is more faithful to the Founders’ design. As Justice Antonin Scalia once explained, quoting Justice Felix Frankfurter, a doctrine that quietly removed so much authority from the states “would hardly have been declared publicly in support of the adoption of the Constitution.” Although the Constitution is solicitous with commerce, it does not protect the “particular structure[s] or methods of operation.” The current configuration of the pork market may be economically convenient, but it is not constitutionally sacrosanct.
And as much as one might infer the Founders’ desire to promote freer markets, no inference is needed to see that their Constitution protects state sovereignty. Courts have long recognized that states have police power, whose proper objects include public morality, and that the denial of state sovereignty, which predates and survived the creation of the union, cannot be inferred the lightness of vague language. Thus, it is not apparent how that sovereignty can be gradually eroded by a judicial doctrine that Scalia described as lacking “any clear theoretical foundation.”
Rather than embody the commitments of the Founders, the dormant Commerce Clause, a shadow-like emanation of the written Commerce Clause, has more in common with the “twilights” and constitutional dark matter uncovered by the Warren Court for imagine entirely new categories of individual rights. . And as an evolving doctrine that pursues changes in market structures, it looks more like a living constitutionalism for business than a principled adherence to the original meaning. Gorsuch, Thomas and Barrett saw no opportunity in National Pig to get rid of the dormant Commerce Clause, but by trying to limit it to state protectionism, they sought to apply the historical concerns that animated the Founders.
Of course, this raises the real possibility that the fears to which Judge Kavanaugh alludes could come true; The California law may become a model for other states to use to increase barriers to “offending” products.[] their moral or political preferences. State efforts to restrict the sale of abortion pills within its borders may make that possibility imminent. But respect for the original meaning of the Constitution, including a healthy regard for state sovereignty and the moral insights that citizens convey to local law, requires that courts find firmer footing if they are to invalidate duly enacted state law. .
Editor’s Note: The Federalist Society does not take positions on particular legal and public policy issues. Any expression of opinion is the responsibility of the author. To join the discussion, email us at [email protected].
