In National Pork Producers Council v. Ross, a 5 to 4 majority held that Proposition 12, which prohibits the sale in California of food products derived from pigs that have been “confined in a cruel manner,” does not violate the dormant Commerce Clause. Justice Gorsuch, writing for the majority, explained:
[T]he Court … [has held] that state laws offend the Commerce Clause when they seek to “build up … domestic commerce” through “burdens upon the industry and business of other States,” regardless of whether Congress has spoken. Guy v. Baltimore, 100 U.S. 434, 443 (1880). At the same time, though, the Court reiterated that, absent discrimination, “a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to” the interests of its citizens. Ibid.
(Gorsuch, J., slip op, 7.) Thus, Guy effectively announces two rules:
1. If a State’s law unfairly advantages local commercial interests over out-of-state interests, the dormant Commerce Clause is violated.
2. If a State determines, “in its judgment, fairly exercised,” that certain products are harmful to its people, it may prohibit the importation or sale of those products without violating the dormant Commerce Clause.
Justice Gorsuch correctly found that Prop 12 does not fall afoul of Rule 1 of Guy, which he characterized as an “anti-discrimination principle that lies at the very core of our dormant Commerce Clause jurisdiction.” (Gorsuch, J., slip op., 7, internal quotation marks omitted.) But he entirely failed to recognize that California never made a fair judgment that sales of products derived from pigs raised in cruel confinement harm its people. Rather, California made a judgment that sales of such products harm pigs, whether bred and raised in California or anywhere else in the world.
Before the Prop. 12 vote, some proponents did claim that meat from cruelly confined pigs was unfit for human consumption. Nevertheless, it is indisputable that Prop. 12 is an animal welfare provision, and not a provision dealing with food safety. Justice Gorsuch himself acknowledges that Prop. 12 is one in a long line of “laws aimed at protecting animal welfare.” (Gorsuch, J., slip op, 2.) Prop. 12 was enacted with the official name: “Prevention of Cruelty to Farm Animals Act”; it is codified under the title: “Farm Animal Cruelty.” And, most dispositively, the language of Prop. 12 and subsequent regulations makes no reference whatsoever to nutritional values of pork products; the operative provisions refer only to the dimensions of pig pens.
Prop. 12 could have been drafted to ban ‘unhealthful pork products, including products derived from pigs confined in a cruel manner.’ There then would have been at least a colorable claim that Prop. 12 is a public health provision within the scope of Rule 2 in Guy, and courts could assess whether there is any rational basis for believing that cruel confinement does in fact yield unhealthful food. But Prop. 12 and its regulations refer generally only to cruelty to animals and specifically to the size of pig-pens, and not to the nutritional qualities of any food.
California obviously may not directly regulate sizes of out-of-state pig pens. Any such extraterritorial regulation would, I think, deny due process and also violate the Tenth Amendment, which arguably reserves to each State the power to regulate animal welfare—including the size of pig pens—within its borders.
Last year I blogged that Prop. 12 is an attempt to do indirectly what California cannot properly do directly, and I argued that common sense and Supreme Court precedent both support the principle: “[W]hat cannot be done directly cannot be done indirectly.” Cummings v. Missouri, 71 US 277, 325 (1867). Cummings is not cited in any of the opinions in National Pork, nor is it cited in any of the parties’ briefs. Therefore, National Pork cannot be understood to reject the argument that Prop. 12 is an unconstitutional extraterritorial regulation of out-of-state pig-farmers, in violation of the Cummings rule.
(The petitioners in National Pork did propose an “extraterritoriality doctrine.” They contended that the Court’s “dormant Commerce Clause cases suggest an … ‘almost per se’ rule forbidding enforcement of state laws that have the ‘practical effect of controlling commerce outside the State,’ even when those laws do not purportedly discriminate against out-of-state economic interests.” (Gorsuch, J., slip op., 8-9.) Justice Gorsuch rejected that contention because each precedent petitioners cited “typifies the familiar concern with preventing purposeful discrimination against out-of-state economic interests.” (Gorsuch, J., slip op., 9.) Thus, the failed “extraterritoriality doctrine” violated Rule 1 in Guy and was unrelated to the rule in Cummings.)
If you’re keeping score at home, the foregoing discussion yields the following conclusions regarding National Pork: it correctly holds that Prop. 12 does not violate Rule 1 of Guy; it incorrectly holds that Prop. 12 complies with Rule 2 of Guy; and, finally, it never considers whether Prop. 12 violates the rule in Cummings. If I’m correct that Prop. 12 does not comply with Rule 2 of Guy, it remains (contra the holding in National Pork) an open question whether Prop. 12 is or is not constitutional. My own view is that the rule in Cummings renders Prop. 12 unconstitutional.
One final note. Seven weeks after National Pork, the Court decided the much-anticipated and very controversial college affirmative action cases, Students for Fair Admissions v. Harvard , 600 US __ (2023). In the 6 to 3 majority opinion, Chief Justice Roberts criticized Justice Sotomayor’s dissent in the following terms:
[D]espite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. … “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows[.]” … Cummings v. Missouri, 4 Wall. 277, 325 (1867).
(Roberts, C.J., slip op., 39-40.) Although this is dicta, it seemingly confirms that Cummings is not a dead letter.
Posted at 6:36 AM